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Nov05

Oklahoma Overtime and Salary

Can an Oklahoma employer legally pay every worker a salary, to avoid paying overtime?

No. This is covered by federal law, not state law in Oklahoma.

An employer can put all the employees on a salary, in order to make processing payroll easier. However, most employees will still be entitled to overtime pay under the Fair Labor Standards Act or FLSA.

The FLSA specifies that employees who work more than 40 hours per week are entitled to be paid 1.5 times their usual hourly rate for each hour of overtime.

An employee who is paid a salary less than $455 per week, is automatically entitled to overtime, regardless of his or her job responsibilities. (The only exceptions: this does not apply to outside sales people, teachers or employees who practice law or medicine.)

Employees with certain duties, who earn more than $455 per week, are exempt from the FLSA overtime laws. These include executives and managers who have significant decision-making responsibilities. Usually this includes the authority to hire, fire and supervise two or more other employees.

Employees exempt from overtime  also include administrative, professional and outside sales employees.

Administrative employees must be office workers or perform non-manual work related to the management or general business operations. In addition, their duties must include making decisions requiring independent judgment with respect to matters that are significant to the business operations. A purchasing agent who made important decisions about which suppliers to buy from, would likely fall into this category. An administrative assistant who merely phoned in the purchasing agent’s orders, would not be exempt from overtime.

Professional employees are workers such as scientists, doctors and pharmacists, who have completed a lengthy course of specialized study in their area of expertise. Creative professionals such as inventors or artists can also be exempt from overtime.

Some highly-paid computer employees, such as computer analysts or programmers, are also excluded. In addition, highly-paid professionals who earn $100,000 or more are often exempt from the overtime laws.

It’s the job duties, NOT simply being on salary, that are the important point. A manager or computer programmer on salary is probably not entitled to overtime. A factory assembly worker on salary is still entitled to overtime, just as he or she would be if paid an hourly wage.

The federal government calls salaried workers who are entitled to overtime salaried non-exempt. They are paid by salary, but are NOT exempt from overtime.

Salaried employees who are entitled to overtime can calculate their overtime rate this way:

Weekly Salary divided by 40 x 1.5 = overtime hourly rate

If John is paid a salary of $400 per week, his hourly rate is $10 per hour. He is entitled to $15 per hour for overtime. This would apply to every hour that he works in excess of 40 hours per week.

Under the FLSA, it is illegal for most businesses to provide time off (sometimes called comp time) instead of overtime pay.

Workers in a number of occupations are always entitled to overtime, regardless of how highly paid they might be. These include police officers, firefighters, detectives and emergency responders. Carpenters, electricians, mechanics, plumbers, and others who work with their hands are also always entitled to overtime pay.

Any employee who thinks that he or she is entitled to overtime, but is not receiving it, should contact the federal Department of Labor, Wage and Hour Division, which enforces this law.

This entry was posted on Monday, November 5th, 2007 at 2:50 pm and is filed under
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69 Responses to “Oklahoma Overtime and Salary”

  1. Dana Coker Says:

    I work for a small family owned business. When I was hired I was told that I was salary ( but I would make 12.00 hr.) I then was given a small raise because my job duties increased. My problem is if I have to be off weather its 30 mins or 8 hours I am docked as an hourly employee. I have put in overtime hours to complete my job, and asked if I could use some of those hours when I was off. I was told that was not an option, I was salary, and if I had to work overtime to complete my job then I needed to come in early or work late. How can I be salary but docked hourly, and not get overtime pay or compensated for time missed?

    Editor’s Note: Dana, this is indeed illegal if the employer is covered by the federal overtime law, also known as the Fair Labor Standards Act or FLSA. A salaried employee who is docked pay when she misses less than a full day of work loses the exempt status. Employers with annual revenue of $500,000 or more, or who engage in interstate commerce, are covered by FLSA. An employee whose duties include interstate commerce may be covered under FLSA, even if the employer isn’t.

    Unfortunately, there is a loophole here. Oklahoma has no state overtime law. The state minimum wage law covers employers with 10 full-time employees, or annual revenue of $100,000 or more — but does not require overtime pay. So if your employer isn’t covered under federal law, you’re probably out of luck.

    If you are not working in Oklahoma, or you’d like a more complete answer, please post your query as a question rather than a comment.

  2. A.B. Sheppard Says:

    I work in the broadcast industry in Oklahoma. Many times I get called out to cover spot news events, liked murders, shooting, stabbings, fires, wrecks and the list goes on. Each time I get called in when I am not on the clock, it is an automatic 3 hour call, whether I work 3 hrs or not. My question is it legal to have me to come in later the next 2-3 days an hour later so I will not be paid the overtime that I got when I was called out. The company does that to us when we work any OT in the week, even when we don’t get a lunch hour. I understand that the company wants to keep us at a 40 hr work week and anything over 40 is overtime and 1 1/2 time in pay. I know that the company wants to get you to work as much as possible with out having to pay OT, but when you work 10-12 hours a couple of days a week, we should be compensated for the work instead of being sent home to keep from paying us.

  3. Caitlin Says:

    We can understand your frustration because you’d like to be paid overtime whenever you’re called out for a story.

    But, what the employer is doing is not only legal, it’s good management. It makes sense to limit the number of overtime hours that employees work by sending them home when things are slow.

    Yours is not the only occupation where this tactic is used. It’s very common in restaurants, for example, for an employee to show up for a scheduled shift and be sent home a few hours later.

    On the plus side, the company does pay you for 3 hours each time they call you in to work, even if you only work 1 or 2 hours. Many people do not get that benefit.

  4. Vi Says:

    I have read the above guidelines and comments. It seems as if I would fall into the category as the first individual getting paid salary (working in addition to 40 hrs. (required) but being docked if I’m out for a few hours (on very rare occasion). How do I know if my employer is covered under interstate commerce or federal law?

  5. Caitlin Says:

    Hi Vi! That’s a good question, one that I’m sure is shared by many people. The majority of employers are covered by the FLSA because they do engage in interstate commerce. For example, an employer who has an Internet connection at work, or uses email, is doing business across state lines. So is an employer who buys from an out-of-state vendor. So is an employer who makes or receives out of state phone calls. For a final determination, you may want to contact the US Department of Labor, Wage and Hour Division. And, thanks for reading our blog! Caitlin

  6. Judy Astia Says:

    I am a hairstylist and I manage a salon for a large corperation. All of my management duties must be fullfilled inbetween haircuts. I am paid hourly, but when I have days off I still must answer my personal phone and have meetings with my boss, who lives in the next state. I only get paid when I am at work but I have never been offered pay for the time I work when I am at home, responding to emails or on the phone for my job. Is this legal?

  7. Caitlin Says:

    Hi Judy! This is probably not legal. Under federal law, employees must be paid for all time worked. Many states have a similar law. You should be paid for required meetings. The best way to approach this is to start tracking the time you spend on emails, phone calls, etc. each week and add it to your time sheet. At this point the employer could argue that he or she is unaware of the time you are working from home. Situations like this are why many organizations put managers on salary. As a salary exempt employee, work done on the day off becomes a moot point. HTH, and thanks for reading the blogs!~ Caitlin

  8. Naomi Says:

    I work for a non profit in Oklahoma as executive staff on a yearly salary. I am required to keep a time sheet and they state if I do not work a full 40 hours (even by 1 or 2 hours a week then I have to take sick, personal or vcaiton leave accrued. I do not ever get paid overtome for the 60 plus hours I generally work. Is this legal?
    The managers I supervise have complained about this numerous times but I do not have an answer for them.
    BTW..we are covered by FLSA.

  9. Caitlin Says:

    Hi Naomi! Assuming that all the staff members are salaried exempt under FLSA, then yes, this is legal. The FLSA requires that exempt employees receive their full salary when they work the entire week, but put in fewer than 40 hours. However, the FLSA does not address how an employer chooses to tablulate vacation, sick or personal time. As long as the employees paycheck is the same amount, what the employer is doing is legal. The employer is simply establishing the 40-hour week as the minimum acceptable — not the acceptable average. (If an employee used up all her vacation, sick and personal time, and worked the usual number of days but less than 40 hours in one week, under the FLSA she would still be entitled to her full salary that week. The employer could not dock her salary. However, the employer could terminate the employee for not meeting their minimum performance standards.) HTH, and thanks for reading the blogs!~ Caitlin

  10. Anonymous Says:

    I work in an office, and have been put on salary. I am considered a ‘manager’ but not a ‘department head’. I am not sure of the difference. The department I work in has 2 employees, including myself. We do creative work, but much of my daily work activities are more like technical work. The laws for salaried employees say that management has significant decision-making abilities and ability to hire/fire; it is painfully obvious that my boss does not allow me this ability.
    There are others in the building who do not have any management authority, but they are on salary. Most of us work at least 50 hours a week, but we don’t get any overtime pay.
    I am afraid if I mention this, or make a big deal out of it, they will a) fire me, b) put me on the clock with less pay, c) make an example of me by punishing me. My immediate boss is very spiteful. I often get emails saying things like, “What were you thinking?”
    I’m not sure what to do…

  11. Caitlin Says:

    Hi Anon!

    Not all salaried employees are exempt from overtime. A salaried employee can be exempt or non-exempt. Non-exempt salaried employees are entitled to overtime when they work more than 40 hours in a payroll week.

    The management exemption is just one of 6 possible exemptions under the federal Fair Labor Standards Act or FLSA. Other exemptions are for professionals, administrators, outside sales people, computer professionals, etc.

    The exemption is based upon the employees primary duties. So it is possible that you are genuinely an exempt employee, either as an administrator or a creative professional.

    The best way to figure out if either of these exemptions applies to you is to check with the Wage and Hour Division of the U.S. Department of Labor. Theoretially, an employer cannot retaliate against an employee, who files a wage complaint, unless it is the employees intention to commit fraud. So the employer probably could not fire you or write you up. Your boss could make your life miserable…but it seems that he is already doing that. And, the company could change your rate of pay at any time, regardless of whether you check into this or not.

    Our suggestion would be for you to phone the U.S. Department of Labor and get their opinion on whether you are genuinely exempt or not. If you are entitled to overtime, you could tactfully discuss it with the HR department (or your boss, if there is no other alternative.) If you don’t receive any satisfaction, then you could file a complaint with the U.S. Department of Labor.

    For more information on exemptions, go to: http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17a_overview.pdf

  12. Sam Says:

    I work for a private aircraft charter company in Oklahoma. I am on salary. I get paid for 40 hours. I am required to be on call. This means, I answer phone calls and emails 24/7. I don’t get alot of sleep. There are days where I won’t get a call, but other times, I am up all night and still have to be in the office that morning.

    For the past month, my boss cut me down to 4 days a week. I work in the office 4 days, get paid for 32 hours, and still have to be on call. Now that I am by myself in the office due to the lay off of my co-worker, I am back to 5 days.

    Should I be getting some kind of compensation for being on call, especially now that it is just me? And was it legal for my boss to cut my pay down?

  13. Caitlin Says:

    Hi Sam!!
    There is not really enough information here for us to answer your questions. For a more complete answer, please post your questions on our sister site at http://www.laborlawtalk.com.
    Because you work for a charter aircraft company, we are going to assume that you are covered by federal law, and not the Oklahoma minimum wage law.
    You are either an exempt employee, or a non-exempt employee. Both types of employees can be paid on a salaried basis. Depending upon your primary duties, you may be exempt from overtime pay under federal law. For example, pilots are often exempt from overtime pay, while a dispatcher would probably be a non-exempt employee. Read more about the exemptions under federal law here: http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17a_overview.pdf
    An exempt employee who works a reduced schedule of 4 days per week must still be paid his or her entire salary for the week.
    A non-exempt employee must be paid overtime whenever he or she works more than 40 hours in a payroll week. This includes time that is spent actively working while the employee is on call. It does not include time that the employee is free to spend in her own persuits, but may receive a call. HTH, and thanks for reading the blogs!~ Caitlin

  14. danny riner Says:

    i am a local truck driver inside a tire plant in oklahoma. My boss is a contractor for the company. i am paid $11/hr 56 hours/wk and no overtime pay. My boss told me he didn’t pay overtime i assumed this was legal and he new what he was doing. i was told by numerous people the he is breaking the law and to get legal advice. is there anything i can do?

  15. Caitlin Says:

    Hi danny! Actually, this may be legal. Your employer is the contractor, not the tire plant. Oklahoma has no overtime law at the state level.
    In order to be covered by the federal overtime law, an employer must have $500,000 per year in revenue, or must engage in interstate commerce. Interstate commerce would include buying products from an out-of-state vendor, or selling products out of state.
    If you think you might be covered under the federal overtime law, file a wage complaint with the US Department of Labor, Wage and Hour Division. HTH, and thanks for reading the blogs!~ Caitlin

  16. Anonymous Says:

    I am an assistant manager at a retail store and I am on salary. I supervise several employees, but I do not have the authority to hire or fire. My employer brings in much more than the required $500,000 annual revenue to be covered by FLSA. I work at least 45 hrs/wk. Sometimes more. When I took the position, I was told that I wouldn’t have available vacation until I had worked there for 1 year. Cool. Now, there were times when I need to take a day or two off during that first year. Deaths in the family, sickness, etc. (Sidenote: there is no sick leave policy. In fact, there is no policy manual at all.) Anyway, I was given those times off with no question or docking of pay. Then my 1 week of available vacation came…and I took it…the whole week (I needed it). About a month after my vacation, I needed a day off. I was refused that day off because I “had no vacation.” I was told that I could not take another day off for a FULL YEAR. I asked if I could be docked pay…they said no. I asked if my extra hours worked every week could make up for it…they said no. I asked if I could make it up the following week by not taking my day off…they said no. I asked why my supervisors were allowed extra vacation and comp time…I received no answer. Any advice or answers? Is this legal?

  17. Caitlin Says:

    Hi Anonymous! Yes, it is legal for an employer to not give an exempt employee any additional time off, over and above his or her vacation.
    It appears that you are legitimately an exempt employee. Exempt employees are not entitled to overtime and must be paid their full weekly salary when they work fewer hours in the week.
    The employer has the right to set performance standards for the job, including limiting unscheduled time off. (They also have the right to treat managers and regional managers differently than assistant managers.) If you miss a day of work, the employer can discipline or terminate you, but they must pay you for that day. HTH, and thanks for reading the blogs!~ Caitlin

  18. Ron Says:

    Caitlin –

    I work as an hourly employee as a laborer. I am paid an hourly wage and despite my questions and the fact that other, longer tenured employees ARE paid overtime past 40 hours – I am not.

    Is this legal in the State of Oklahoma to have a “two-tiered” system wherereby established employees are paid overtime while new ones are not ?

    Thanks in advance

  19. Caitlin Says:

    Hi Ron! Obviously this tactic isn’t fair…but it may very well be legal in Oklahoma.
    It would be illegal if the employer committed illegal discrimination in deciding who is entitled to overtime. For example, if the employer paid all Caucasian workers overtime and did not pay any Hispanic workers overtime when they put in more than 40 hours in the week, that would probably be illegal discrimination.
    Discrimination is illegal when employment decisions are based on race, color, religion, national ancestry, sex, age (between 40 and 70), pregnancy, disability or genetic information.
    However, if the employer is using other factors like hire date to determine whether an employee receives overtime pay, that may be legal.
    In fact, there may be a legal requirement for the employer to treat employees differently. Oklahoma has no overtime law, so employees in the state are not entitled to overtime after 40 hours unless they are covered by federal law. Generally if a company has revenue over $500,000, it is covered by the federal overtime law.
    However, even if the company as a whole is not covered by federal law, individual employees who engage in interstate commerce ARE covered under the federal FLSA (Fair Labor Standards Act.) So they are entitled to overtime.
    For example, an OK trucking company with less than $500,000 in revenue would not be covered by the FLSA and would not be required to pay overtime. However, if the employer has 2 truck drivers who travel across state lines in the course of their jobs (or a receptionist who accepts out-of-state phone calls) then those employees are entitled to coverage under federal law. Those 3 employees must be paid overtime — but not the other employees who work for the company.
    We know this is a complex topic, so feel free to post additional comments. HTH, and thanks for reading the blogs!~ Caitlin

  20. Anonymus Says:

    Let us assume that my exempt status is valid. My employer has reduced my salary by approx 8%, introduced 2-3 weeks of plant shutdowns for which I am allowed to use vacation or unpaid leave and now has unrealistic deadline for which he is mandating overtime. Since my employer is covered by the FLSA is this legal in Oklahoma? I believe it is at least morally wrong do you agree?

  21. Caitlin Says:

    Hi Anonymus! This is entirely lawful in Oklahoma and every other state. And frankly, we do not agree that it is unethical. The average salaried employee has had a 20% reduction in pay in the last 18 months. So an 8% reduction seems quite reasonable. Many employees are facing furloughs, and work overtime every week. And they are the lucky ones in this economy, because they have jobs. HTH, and thanks for reading the blogs!~ Caitlin

  22. Brianna Madden Says:

    Hi, my husband works for a nursing home as a maintenance supervisor in Oklahoma. He has approx 3 employees under him. He works 9-5 and also is on call 24/7 he has to go in whenever the fire panel alarms, or the A/C goes out, the heat, the nurses lock there keys in the med carts and anything that could put the residents in danger. He has worked tons of overtime but since he is salary he never gets paid for it. his gross pay is $3200 a month. recently his father passed away and he had to go to atlanta for 4 days. Needless to say they docked his pay for those 4 days, how is this legal? He also has been remodeling the nursing home for months.

  23. Caitlin Says:

    Hi Brianna! The whole concept of a 40-hour work week really does not apply to an exempt employee. Your husband is legitimately an exempt employee, as far as we can tell. That means he can be required to work 50, 60 or even 100 or more hours per week, every week. You are assuming that when he works more than 40 hours in the week, he is accumulating “good time” or “brownie points” that will cover him when he works fewer hours in the week. This is not the case. An exempt employee who take one or more full days off for personal business (such as a funeral) need not be paid for that time. HTH, and thanks for reading the blogs!~ Caitlin

  24. Waylon Says:

    Hi,

    I am a Asst. Director for a hotel. I use to be a Asst. front desk manager making less than 30k, but the beggining of the year, they laid off the Dir. of Housekeeping for the hotel and moved me to the department and made me the Asst. Director, without a director. My pay did not change, but i have been made the “unofficial” director of Housekeeping. I work about 60 hours a week and i am in full controle of the department. I was told 3 months ago, that due to more labor cuts, I will be needed to work 6 day work weeks. Is this legal? is there nothing i can do except be stuck here and be a punching bag until i find another job? my pay comes out to 13 something an hour, but that is based on a 40 hour work week. I just feel like they are using me since there is nothing i can do about it?

  25. Caitlin Says:

    Hi Waylon! This is a tough situation, and you have our sympathy. Unfortunately, as long as you earn more than $455 per week before taxes, this is legal.
    The hotel industry is really suffering right now and many people are laid off. Your best bet is to stick with it until you can find a better job. HTH, and thanks for reading the blogs!~ Caitlin

  26. Ryan Says:

    My wife has a job offer from an Architectural firm in Oklahoma for an Interior Designer/Autocad designer support position. They are offering an hourly wage and state that if overtime is approved it will only be straight time, not time and a half. She would be making more than $455 per week. I would think the firm is covered under the FLSA, but is a position like this considered a “professional” and there fore exempt from the overtime law?

  27. Caitlin Says:

    Hi Ryan! Your wife should accept the job. If and when she works overtime, then she can raise the issue of what she is legally entitled to. (An employee cannot sign away her rights under the FLSA, so if you wife is entitled to overtime before she signs the agreement, she will still be entitled to overtime after she signs the agreement.) If the company has less than $500,000 in annual revenue, they are probably not covered by the FLSA and this overtime arrangement would be legal in Oklahoma.

    However, if the company is covered by the FLSA, it does not appear to us that your wife meets the requirements for an exempt employee. Usually an exempt Professional is a job that requires an advanced degree, like doctor or lawyer. HTH, and thanks for reading the blogs!~ Caitlin

  28. Phyllis Says:

    I work for a small company. There is a printed policy concerning sick and vacation time. I work mandatory overtime of 50 hours per week; I took off 4 hours for a medical appointment and filled out the mandatory sheet marking sick leave. When I received my wages, the amount of time taken for the medical appointment was deducted from my overtime and not from sick leave as I specified. Is this legal?

  29. Caitlin Says:

    Hi Phyllis! Yes, this is entirely legal and appropriate. HTH, and thanks for reading the blogs!~ Caitlin

  30. Phyllis Says:

    Thanks for the response; I was thinking that the overtime would be shifted to regular hours by four; in other words, I was not expecting overtime pay for the time gone (1.5)since I would not have those hours WORKED; however, the benefit of sick leave would be honored – but this is not so?

  31. Caitlin Says:

    Hi again Phyllis! Ah, thanks for the clarification. Sounds like you normally work 40 hours per week, plus 10 hours of overtime. When you took off 4 hours as sick leave, you expected to be paid for 40 hours, plus 4 hours sick leave (straight time), plus 6 hours overtime. However, the employer did not pay you for sick leave. Many companies have a rule that an employee can only use sick leave to bring their time up to 40 hours in the week — not over 40 hours. HTH, and thanks for reading the blogs!~Caitlin

  32. Jimmy Says:

    Hi, i work for ]employer name deleted] a freight carrier here in oklahoma as a diesel mechanic and make more then 455 a week, the thing i dont under stand it we do not get paid over time unless we work more then 50 hours a week, but a year ago i was working for the same company but in wilsonville oregon and we got paid over time after 40. how can a the same company pay over time differntly because of location? thanks

  33. Caitlin Says:

    Hi Jimmy! The company can pay overtime differently in different locations because they are following state law. Oregon requires overtime after 40 hours; Oklahoma does not. However, we suspect that your current employer may be covered under federal law, which would require overtime after 40 hours. Contact the U.S. Department of Labor at http://www.dol.gov to clarify. HTH, and thanks for reading the blogs!~ Catilin

  34. David Jets Says:

    Hi blog im from warrington but im moving to manchester i found this on the aol search engine,keep the good work up i will add you to my favoroties.

  35. Caitlin Says:

    Welcome, David! Thanks for reading!~ Caitlin

  36. amy Says:

    I work for a small franchise resturant and i get called in to work doubles every day 10 to 12 hours daily and i make 40+ hours a week and my boss pays some of his employees over time but me he said he could not afford to pay me over time is this legal i am not a manager just a hourly paid worker

  37. Caitlin Says:

    Hi amy! Unfortunately, this may be legal in Oklahoma. If you accept credit card payments or the restaurant has more than $500,000 in annual revenue, you are probably covered by the federal overtime law. If not, the employer could legally refuse to pay all employees overtime.

    If employees of another sex, race, color, national ancestry etc. are being paid overtime and you are not, that may be illegal discrimination. If so, you should file a complaint with the EEOC. HTH, and thanks for reading the blogs!~ Caitlin

  38. Patrick Says:

    I work for a company that clearly does business over state lines, *they ship their product all over the world*. I work in a kitchen, with my hands, 50 to 60 hours a week, yet only get paid for 40. I am required to fill out my time card every 2 weeks, I dont actually clock in or clock out. I have heard that if I fill out my time card with my actual hours worked that they will fire me. *I guess it has happened in the past*. I have 2 supervisiors I work with every day, I dont have the ability to hire or fire, people “under me” come to me for advice, but i cant tell them what to do. Also im required to work at home doing computer drafting after my 10-12hr shifts, and given a week deadline for these drafts. Again, Im only payed for 40hrs. This has been going on for the last 14 months. Is there anything I can do?

  39. Caitlin Says:

    Hi Patrick! Yes, you should file a wage complaint with the U.S. Department of Labor at http://www.dol.gov. Under the federal FLSA, the employer must accurately track all the hours you work and pay overtime after 40 hours per week. A chef or Kitchen Manager can be an exempt employee, but only if he or she supervises other employees. HTH, and thanks for reading the blogs!~ Caitlin

  40. Leslie Says:

    My step mother works as an in home care provider and has been there for 5 years now. she has been making minimum wage since she started there. recently she found out that they are starting new people out at 8.50 to 9.00 an hour. she wants to know if it is legal to start other people out at this amount if she has been there for this long and is still at 7.25 an hour.

  41. Caitlin Says:

    Hi Leslie! Unfortunately, yes, this is probably legal. There is no law that the employer has to pay workers fairly, only that they must be paid at least the mini mum wage.

    If the employer was paying your stepmother less due to her age, race, color, sex, etc. then that would ge illegal discrimination.

    The good news is that this indicates that the market rate for in-home health care providers is probably $8.50 or more per hour. Your mother should apply with jobs at competitors and ask for that as a starting wage. If she finds a higher paying job, there is a chance that her current employer will offer to match it rather than lose her. However, she should not try this until she actually has another job offer in hand. HTH, and thanks for reading the blogs!~Caitlin

  42. Christopher Says:

    Hello. Im a salaried employee in the state of oklahoma. i am part of a lawn crew and i supervised the other 2 employees that worked with me. i was not responsible for anything except writing down the hours worked. my 2 questions are as follows: i was recently asked to take 3 days off for disciplinary actions, however i was required to work the following 2 weekends by my employer tomake up for the lost hours. upon receiving my check i was only paid for 80% of my salary and the staying reason was because i was of three days even though i was informed by my employer that i had to work all my 80 hours. in short i reached my 80 hours and i received payment for 64 hours. is this legal? secondly, like i stated above all i was responsible for was tracking employee hours, would that fall under the exempt status or the non exempt status because i have worked many more hours than my 80 hours to cover my salary. thank you ahead of time for answering my questions.

  43. Caitlin Says:

    Hi Christopher! An exempt employee can be put on unpaid disciplinary suspension, and not paid for 3 days. The employer could require that the employee work on weekends, without extra pay.

    From the information given, it appears that you should be a non-exempt employee. You could file a wage complaint with the U.S. Department of Labor at http://www.dol.gov for unpaid overtime. HTH, and thanks for reading the blogs!~ Caitlin

  44. DJ Says:

    I am a home health RN who is salaried. I worked for another homehealth in which we were salaried also. The difference is that with the other hh if we got called out after hours or on weekends and had to do an admission or resumption of a pt then we recieved a set amount in addition to our salary. the company that I am working for now pays nothing for any work over 40 hours, whether you work 40 or 60 its straight salary. If an admission is required on the weekend it might take a total of 4-6 hours to complete and it is expected to be handed in on Monday morning. Several other home health agencies that I have talked with seem to offer salary and then pay for additional work that results from call back afterhours. (If a nurse has to work 45 hours to get the normal courseof work done then it would be salary but lets say there is a pt requiring assistance after hours then the nurse might get paid $25 for going out. maybe $35 to resume a pt or $45 for an admit. (examples). This company pays nothing extra, it says all RNs are exempt employees. Which is right? Is this legal?

  45. Caitlin Says:

    Hi DJ! When an RN is an exempt employee, the law does not require that she be paid an additional fee, regardless of how many hours she works in the week. The former employer was being generous by paying a bonus for weekend call-outs, but there is no law that they must. HTH, and thanks for reading the blogs!~ Caitlin

  46. Leslie Says:

    I am a salaried supervisor for a large transportation company and I know that I probably fall under the overtime exempt category but I was wondering if they can dock my pay when I am off on a sick day or emergency with my child? I work nearly 60 hours a week and have been with the company for 17 years.

  47. Caitlin Says:

    Hi Leslie! Yes, if you miss an entire day of work due to “personal businesss” like taking your child to the doctor, the employer is not required to pay you for that day. The same is true if you miss a day of work due to illness, and have used all your paid sick leave. If you search our archives for “exempt” you will find a lot more information. HTH, and thanks for reading the blogs!~ Caitlin

  48. jaybird Says:

    If i am salaried at 40 hours per week but am required to work 48 per week should i be salaried for 48 hours a week? is it legal to be salaried for 40 hours but required to work 48 every week? My employer put me and several others on salary because our job requires overtime put in to get the job done. Once we get salaried we are worked more hours because the employer is not having to pay us overtime. Is this legal?

  49. Caitlin Says:

    Hi jaybird! The concept of “40 hours per week” is irrelevant if you are genuinely a salaried exempt employee. An exempt employee is paid only his salary each week, regardless of the number of hours he works. He may work 80 hours every week, but is still entitled only to his salary.

    However, the employer cannot avoid overtime simply by putting everyone on salary. Under the federal FLSA, only employees in 5 types of job are exempt from overtime: Outside Sales, Executives (managers),(some) Computer Pros, Administrators(like bookkeepers) and Professionals (like doctors and lawyers). If you do not fall into one of those categories, you are still entitled to overtime at 1.5 times your average rate, even if you are on salary. HTH, and thanks for reading the blogs!~ Caitlin

  50. Lindsey Says:

    i work for a small family owned business in Oklahoma. We have salaried employees who believe if they come in for ten mins they should get paid for a full days work b/c they are salary. Someone told me salaried employees must work atleast a minimum of 2 hours to recieve a full days pay. My question is what is the least amount of time an employee has to work inorder to get paid for a full day. and if there is no minimum then does that mean if i was salary i could just not work for a week and still expect a full paycheck?

  51. Caitlin Says:

    Hi Lindsey! Under the federal FLSA or Fair Labor Standards Act, a salaried employee can be either exempt or non-exempt. Usually when someone says “a salaried employee” they mean “an exempt employee.”

    In this case, the exempt employees are right. An exempt employee who works any portion of the day — even 5 minutes, even from home, must be paid his or her full salary for the day. If the employee works even a few minutes each day, he or she is entitled to full payment for the week. There is no 2 hour minimum. If the employer does not pay the exempt employee for the full day, the employer is breaking the law.

    An exempt employee is not entitled to payment if he or she does no work at all for the payroll week.

    Note that the employer can establish minimum work hours (say, 8 am to 5pm) and discipline or fire any exempt employee who fails to work these hours. However, the exempt employee must still be paid for the days they work. HTH, and thanks for reading the blogs!~ Caitlin

  52. Lisa Says:

    I was working as a lead for a company and an hourly employee not salary. I was not allowed to fire or hire anyone. I was there to help the other hourly employees with issues with customers. I was the weekend lead. I work weekends for one year. The other hourly employees are given an extra dollar an hour for working weekends. I was not given that extra dollar an hour. Therefore the hourly employees were making more then me and I had more responsibilities. Is that legal? I was only a coach for other hourly employees.

  53. Caitlin Says:

    Hi Lisa! There is no law that a supervisor, coach or lead has to be paid more than the employees they are supervising. Nor is there any law that employees must be paid extra for working on the weekend. However, if a female lead was being paid less than male leads or coaches, that might be illegal discrimination. If a lead was paid less than the employees she supervised, and that person was of a different race, color, religion or national ancestry, that could be illegal discrimination. HTH, and thanks for reading the blogs!~ Caitlin

  54. Marie Says:

    I was told of a new Oklahoma law that says employers can no longer hire people and pay salary unless they pay them a minimum of $30,000 a year. Have you heard of this and if so can you cite the law for me to read? Thank you for your time.

  55. Caitlin Says:

    Hi Marie! Sorry, but we believe that your information is inaccurate. Oklahoma actually does not have a state overtime law. The relevant overtime statute is the federal FLSA. The FLSA regulations were revamped in 2004. They require that an employee be paid a salary of $455 per week or more, to be exempt from overtime. That works out to a salary of $23,660 per year. A few states like California require a higher salary, but Oklahoma does not.

    However, not every salaried employee is exempt from overtime. Under the federal FLSA, only employees in 5 categories are exempt: Executives, Administrators, Computer Pros, Professionals (like doctors and lawyers) and Outside Salespeople. Other employees who are paid a salary are still entitled to overtime when they work more than 40 hours in the payroll week. HTH, and thanks for reading the blogs!~Caitlin

  56. Marie Says:

    Thank you for responding so quickly to my question. Now that I have had a little clarification, I have another question. I am a professional who works part-time but was on salary until my employer found out about this federal law. Now they have let me know that I have to be put on an hourly wage. This is significantly impacting my paycheck. I understand making a “minimum wage” for salary employees, but does this law in fact make it impossible to hire salary employees who work and get paid for their part-time jobs?

  57. Caitlin Says:

    Hi Marie! The answer is yes and no. It is actually to your benefit to be paid hourly if you are part-time. The federal FLSA requires that to be exempt, an employee be paid the same salary every week, “regardless of the quantity or quality of work performed.” It also requires that the salary be at least $455 per week. There is no provision to prorate that salary for an employee who works only part-time. A part-time employee can be exempt only if she earns at least $455 every week. Even if the agreement is that the exempt part-time employee will work only 1 hour per week, she must still be paid $455 every week.
    However, there is a good reason why you would not want to be a salaried professional. Remember that phrase “regardless of the quantity or quality of work performed”? That also means that as an exempt employee, you are not entitled to additional payment, even if you work 70 hours or 100 hours per week. The employer has the right to determine how many hours the exempt employee must work, to unilaterally change that agreement, and to terminate any employee who does not meet their expectations.
    We have seen this happen over and over again. An employer hires a part-time professional to work 20 hours per week at a salary of $455 per week. An emergency arises or a new manager is hired, and suddenly the employer expects the exempt employee to put in 60+ hours per week. However, she is still entitled only to her weekly salary. The exempt employee can be fired if she refuses to work 60, 80 or even more hours every week.
    We have to give your current employer credit. Many managers would have simply left you at the $455 salary, and informed you that you must now work 80 hours per week.
    This happens so often that our standard advice is that all part-time employees should be non-exempt, for their own protection. We are always happy to help — feel free to post as many comments as you like. HTH, and thanks for reading the blogs!~Caitlin

  58. Marie Says:

    Is there a provision where I could get paid per job instead of per hour? Again, thanks for all your advice and insight.

  59. Caitlin Says:

    Hi again Marie! No, probably not. Some workers can be independent contractors who are paid an agreed-upon sum per job. However, when the employer controls when, where OR how work is performed, the worker is legally an employee — not an independent contractor.
    There are other reasons why you would not want to be an independent contractor. A contractor is not entitled to benefits like health insurance, paid holidays or vacations, and has to pay more social security tax, which could be thousands of dollars per year. There is also no wage protection or minimum wage under an independent contractor relationship. You essentially become a vendor, and if the employer refuses to pay you, there is no state or federal agency that will help you collect.
    It sounds like your goal is to earn as much as a non-exempt employee, as you did in your role of exempt part-time employee. The best way to do that is to negotiate a higher hourly rate. HTH, and thanks for reading the blogs!~ Caitlin

  60. Marie Says:

    Ok. I have been informed that I am now an independent contractor. Is there an average tax percentage I can use to see what my earnings will be?

  61. Caitlin Says:

    Hi Marie! There is no simple answer because this will depend upon your tax status, earnings, deductions, etc. Many independent contractors figure that they must multiply their wages by .70 to determine the comparable salary as an employee, meaning an independent contractor who earns $1,000 has the same net income as an employee who earns $700 with benefits. This figure includes benefits like group health insurance, paid vacations and sick leave, as well as the higher taxes paid by the self-employed.
    Again, most employees do not qualify as independent contractors. It is a violation of federal and state laws for an employer to misclassify an employee as an independent contractor. HTH, and thanks for reading the blogs!~Caitlin

  62. Marie Says:

    I work from home with company equipment. I have a weekly deadline. I was trained seven years ago how to do the position that I have since held. Would these terms qualify me or disqualify me to be an independent contractor? I do not want to be an independent contractor since this again cuts into my already stripped paycheck, but the company is trying to figure out how to do things now that they were informed of the law that does not allow part-time salary positions.
    Hope you have a Merry Christmas.
    Thanks for everything!

  63. Caitlin Says:

    Hi Marie! None of the factors you mention would automatically disqualify you from being an independent contractor. When the employer controls when, where OR how you work, that makes you an employee. That does not seem to be the case here. If the employer required that you perform 2 hours of work on Monday between 8 am and 10 am, that would make you an employee, even if you worked from home. But if you simply have a weekly deadline, and can work at a time of your choosing to accomplish it, you may very well qualify as an independent contractor.
    It could make a difference what type of work you do — in some occupations, it is almost impossible to qualify as an independent contractor.
    Simply working on company equipment does not make you an employee rather than a contractor. If the employer required that you perform all work on their premises, that would make you an employee — but that does not seem to be the case.
    You are understandably unhappy with this situation, because it is basically a wage reduction. However, you are in good company. Keep in mind that the average exempt employees salary has been reduced 25% since 2008 — and those are the ones who are still employed. There is no guarantee that if you were still an exempt employee, your salary would be unchanged.
    This may be a blessing in disguise. I sounds like you want or need the flexibility to work your own hours, from home. There are very few employees who enjoy that arrangement. As an independent contractor, you are a small business owner. You can deduct business expenses from your income taxes, and if you like, you can solicit additional clients to expand your business. On the other hand, if you have no desire to own your own business and work for yourself, you should probably look for a better job. That may involve working in an office, at specified hours, or working full time. HTH, Happy Holidays to you, and thanks for reading the blogs!~Caitlin

  64. Teresa Says:

    Yes my name is Teresa and i live in OK. I was an Asst Team Leader for a food and Beverage chain kind of like a waffle house or ihop, am i elegible for overtime pay when i was working 70 hour work weeks and holidays? if i made over 455.per week? And how about if i resigned with a 2 week notice that wasnt accepted more than half way through the 2 week pay period (like 1 week and 3 days) do they pay me only half of a one week salary (the 3 days)?

  65. Caitlin Says:

    Hi Teresa! If you had management duties like hiring, training and supervising employees, scheduling, ordering food or resolving customer complaints, this may be legal.
    Many salaried employees are exempt from overtime under federal law based on their job duties. Assistant restaurant managers are often exempt employees. That means they are never entitled to overtime, no matter how many hours they work. An exempt employee can be paid just for the days she actually works in the final payroll week of employment.
    However, if you did not have management duties, you would be a non-exempt employee entitled to overtime. HTH, and thanks for reading the blogs!~ Caitlin

  66. Teresa Says:

    Thank You for answering so quickly. But as of the date i was not in charge of any of those duties except maybe watching (supervising) a shift or handling customer complaints. That was the GM duties. I am really not sure if i should pursue this and or but i really think that i was not a team leader at this point but a asst. team leader.

  67. Caitlin Says:

    Hi Teresa! You may not have been an exempt employee. It is not necessary that you have all those duties to be considered an exempt manager. If you supervised 2 full-time employees, and had the power to recommend who was hired or fired, you would be an exempt “Executive” under federal law.
    If you did not supervise at least 2 employees or have management responsibilities, then you probably were not exempt, and are owed overtime.
    You can file a complaint for unpaid overtime with the U.S. Department of Labor at http://www.dol.gov. They will investigate, and if they find you are owed overtime, they will force the employer to pay it. There is no penalty to you if they find you were an exempt employee. HTH, and thanks for reading the blogs!~ Caitlin

  68. Al Says:

    Hi, I am an exempt employee although half of the hours I work are spent working on machinery. Whether it is pipefitting, rebuilding pumps, wiring, greasing equipment, or out working on the line etc… I guess that I am a manager but I have no real authority as the GM/owner makes all decisions concerning hiring, firing, purchasing etc…. although I do some training. I am salaried in excess of $1000 weekly but now the GM/Owner has decided that we (myself and the one other exempt employee) will start clocking in and out and set our hrs @ 8-5 yet I frequently have to work until 6 or later and also mandated a lunch break of 1hr. I was always under the impression that the whole start/stop thing kind of went the wayside when you became exempt as a way to help manage overtime.

  69. Caitlin Says:

    Hi Al! We have good news and bad news. First, the bad news — an employer can implement all the policies that you mention, for an exempt employee. The employee can be required to clock in and out, and to work a set minimum schedule such as 8 am to 5 pm with a one-hour meal break, in addition to any other hours required to get the job done, without any additional pay.
    Like you, many employees are under the impression that the whole “work schedule” concept flies out the door once an employee is salaried. That was generally true before 2004. However, in 2004 the Bush administration introduced new regulations that changed this concept. Ironically, these regulations are called the “Fair Pay” regulations — although they required many exempt employees to work additional hours without overtime. So yes, your GM can implement all of these changes and as an exempt employee, you can be disciplined or terminated if you do not comply.
    There is no attempt to “manage overtime” when an employee is exempt. An exempt employee can be required to work 70, 80 or more hours per week, every week, and is entitled only to his usual weekly salary. There is no presumption under FairPay that exempt employees will only work a 40-hour week.
    The good news is that from your description of your primary duties, you may not be an exempt employee at all. Simply putting an employee on salary does not make him exempt. Neither does job title, or occasional training duties. Exemption status is based upon an employees primary duties — meaning how he spends the majority of his work time.
    The federal FLSA recognizes 5 classes of exempt employee. Unless your job requires a college degree in engineering, the only classification you could possibly fall into would be the exempt Executive. In order to qualify, you would have to supervise 2 full-time employees (or the equivalent), with authority to make recommendations on hiring, firing, promotions, discipline, etc. If you do not have that authority, you should consider filing a wage complaint with the U.S. Department of Labor at http://www.dol.gov. They will investigate, and if they find you are exempt, will require the employer to pay you overtime for the past 2 to 3 years.
    However, even if you choose to file a complaint, you should comply with the other company policies, including working 8 to 5 with a one-hour lunch, etc. If you fail to do so, you can be disciplined or terminated. HTH, and thanks for reading the blogs!~ Caitlin

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