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Mar09

Florida Salary and Overtime

In the state of Florida, can an employer require a sales manager to work over 40 hours per week without any overtime pay? I am working 50 to 60 hours a week without compensation because I am salaried. Should I be getting some compensation? I run the sales dept. in a printing company.

There are really two questions here: Can the employer require a worker in Florida to work 50 or 60 hours per week, every week? And, Is this employee entitled to overtime?

The answer to the first question is definitely “yes.” With very few exceptions, employers all over the country can require that workers put in any amount of overtime. If an employer liked, he or she could require that employees work 100 hours every week. (Of course, it’s possible that the employer would have very high turnover, unless the employees were very, very highly paid.)

The only limitation that Florida law puts on overtime is for manual labor, such as digging ditches.  Working as a Sales Manager definitely does not qualify as manual labor.

The answer to the second question is “maybe.” It’s possible that this employee is entitled to overtime. Then again, he or she may not be entitled to overtime.

Under the federal Fair Labor Standards Act of FLSA, most workers are entitled to an overtime rate of 1.5 times the usual hourly rate when they work more than 40 hours per week. Even some salaried workers are entitled to overtime.

Job duties are the deciding factor here. Federal law permits workers in a number of occupations to be exempt from overtime. They are executives, managers, administrative personnel, highly educated professionals and some highly-paid computer programmers or analysts. Outside sales people are also exempt from overtime.

However, even if an employer gives a worker the title of “manager” and pays the worker a salary, the employee may still be entitled to overtime. The deciding factor is the employee’s usual and customary duties.

In general, managers must supervise three employees to be exempt from overtime. This includes having the authority to independently hire or fire the three employees, without consulting anyone else.

Administrative workers must have significant independent decision making authority over matters that affect the company’s profitability or operation, to be exempt from overtime.

Outside sales people must work away from the employer’s office, and their primary duty must be selling or taking orders for the company’s products or services. They may also sell or rent facilities, in some cases.

Professional employees are those who have an advanced degree, such as doctors, scientists, and pharmacists.

Computer professionals generally must be paid more than $100,000 per year in order to be exempt from overtime.

If none of these job descriptions applies, then the worker is entitled to overtime compensation. In addition, any worker whose salary is $455 per week or less, is automatically entitled to overtime under federal law.

This entry was posted on Sunday, March 9th, 2008 at 10:21 pm and is filed under
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67 Responses to “Florida Salary and Overtime”

  1. TAG Says:

    I had an previous employee that put in her resignatio effective June 13. She calculated her final pay on her last day, submitted it and we paid it. I recently received an email on hours that she claims are still owed totaling 28.5 hours over 6 days. However, the hours she listed were incorrect. In resesarching I found she was out sick two of the six days and that the hours she is claiming on the other days are incorrect as well. In addition, researching the employees payroll records, I discovered that I had overpaid her by 53 hours. In recalcuting her time, I would have owed her 15 hours, however, since I had already overpaid her by 53 hours, she actually owes me money. She had submitted to me her final time with her signature and the 53 hrs that she had already been paid from the previous pay period was listed on her sheet. I had not caught that until she had sent notices that she is owed back pay.

    She recently contacted the Labor board and has claimed that we owe her back pay along with overtime. what rights do I have? Will I be subject to pay overtime if I have overpaid her?

  2. Caitlin Says:

    Hi TAG, This is a complex issue. First of all, let us say that it is, uhm, unwise for an employer to allow the employee to calculate her final pay check. The temptation to lie is just too great. It sounds like, overall, you need a better, more professional method of tracking employee hours and handling payroll.

    The employee claims that she is owed 28.5 hours. You claim that she is owed 15 hours, but has been overpayed by 53 hours, meaning she has been overpaid by 38 hours total.

    The employee is probably bluffing when she says she contacted the “Labor Board.” There is no Florida agency that collects past due wages for employees. She would have to file in small claims court or hire a lawyer to pursue this.

    If, in fact, the employee has filed a complaint with the Wage and Hour Division of the US Department of Labor, they will only pursue the claim if she was paid less than the federal minimum wage for the hours worked, or has unpaid overtime. That does not appear to be the case.

    You should assemble all the documentation that you have on this issue including evidence of her hours worked and keep it together in one file, in case you are called upon to offer proof. You should also send a certified letter to the former employee, detailing the hours she worked and what she was paid. That letter should show that she has been overpaid by 53 hours, which exceeds the 15 hours that you owe her.

    (In some states you would be required to pay the 15 hours,anyway, but Florida does not appear to be one of them.)

    If you are contacted by a state or federal agency, you should cooperate with them. And, if this situation goes any further, you will probably want to hire an attorney. But there’s a good chance that once you send the letter to the employee, she will desist.

    This comment does not constitute legal advice and should not be construed as such.

  3. Mary Says:

    I am an admin asst for a used car dealer in Florida. I work 45 hrs every week, and only make a base salary of $500 gross plus a monthly bonus for taking payments, keeping up with our website etc. Also, my employer has a detailer and mechanic that also work 45 plus hours every week and are not paid any overtime. We have all been told we are “salary”, but I know the difference between exempt & non-exempt. What can I do to collect the wages owed to me without losing my job, and what recourse is my employer allowed to pursue? Can he cut my hours and pay? Can he fire me for demanding overtime? I can not lose my job, but this is not right and not fair, and I am having a hard time turning a blind eye. Any advice?

  4. Caitlin Says:

    Hi Mary! While the state of Florida has a minimum wage law, it generally leaves enforcement up to the federal government. Under federal law, non-exempt employees must be paid overtime when working more than 40 hours per week, as you know. You could report this to the US Department of Labor, Wage and Hour Division at http://www.dol.gov. By law, employers are not permitted to retaliate against an employee who files a complaint in good faith. HTH, and feel free to post additional questions on our sister site for employees at http://www.laborlawtalk.com. Thanks for reading!~ Caitlin

  5. Nydia Says:

    I’m a Vice President with no supervisory responsibilities. I have been working for a company for 2 1/2 years as a salary exempt employee. For the whole time that I have worked for this company, I average 55 to 60 hours per week with no overtime pay or comp time. We have been told that exempt salary employees get no overtime pay or the company is not required to give comp time for hours worked over 40. No only do I work no less then 10 to 12 hours per day, I have lunch at my desk and work thru lunch every day. I have had to use up all my vacation and personal time off due to a family emergency and the company informed me that if I need more time off to tend to any family emergencies or personal illness I would have to do so without pay. It doesn’t seem fair that I have been there and have worked way over 55 + hours per week for this company to pull them thru difficult times when they needed and now I need and they say NO. What are my options in this matter?

  6. Caitlin Says:

    Hi Nydia! Sorry to hear that you are having such a tough time. Your situation is shared by many people.

    First of all, it appears that you are genuinely a salaried exempt employee, since as a VP you likely have the power to make decisions that affect the company. So legally the company is not required to pay you overtime.

    Many salaried employees have a mental picture that the “normal” work week should be 40 hours. They feel that anytime they work more than 40 hours per week, they are investing extra time in the company, and should be able to tap into that investment at some point in the future. So a salaried employee who works 10 extra hours per week for 10 weeks may feel that he or she is entitled to take 100 hours off at some point in the future.

    Unfortunately, that’s not how the employer sees it. To the employer, the salaried worker is responsible for putting in as many hours as it takes to get the job done. In their mind, an employee who works 55 or 60 hours per week is simply doing her job. If she suddenly stops working 55 or 60 hours per week, she is no longer doing her job — her performance is viewed as substandard.

    Some employers are flexible in the number of hours that salaried workers put in, as long as the job is getting done. Others are more rigid.

    It’s worth noting that some countries, like France, have legally defined the “standard work week.” In France the standard work week is 35 hours. There is no such legal definition in the U.S. As long as non-exempt employees are paid overtime after 40 hours, an employer can require a worker to put in 100 hours per week — and some do.

    You can request FMLA leave, if your family emergency includes a qualifying reason such as the illness of an immediate family member. (In some cases, key employees including executives are excluded from the FMLA.) Otherwise, you can try to arrange to work from home part of the time, or to take an unpaid leave of absence. Unfortunately, if you do not qualify for FMLA, there is no legal protection for your job while you are away. HTH, and thanks for reading the blogs!~ Caitlin

  7. Lisa Says:

    Is it legal to transition a Call Center Tele-Sales Agent from an hourly wage and commissions to a salaried wage and commissions without paying overtime pay in the state of Florida when overtime is worked? The Sales Agents would be expected to work more than 40 hours/week. A possible work schedule: 9-12 hour days Mon to Thursday, 8 hour days on Friday and 7 hour days on Saturdays.

    Thank-you

  8. Caitlin Says:

    Hi Lisa! Most call center employees are covered under the federal Fair Labor Standards Act or FLSA because they make calls to different states.
    The FLSA permits outside sales people to be salaried exempt, but not inside sales people such as Tele-Sales Agents.
    In some cases, if the employee is a supervisor, manager, administrator, executive, professional or highly paid computer professional, they may indeed be exempt from overtime. But it does not sound like this is the case. So the employer would have to pay overtime to this employee.

    An employer can require that an exempt employee work any number of hours, without paying overtime. Non-exempt employees are always entitled to overtime when they put in more than 40 hours per week.

    Read more about exempt employees at: http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17a_overview.pdf

    Read more about call centers at: http://www.dol.gov/esa/whd/regs/compliance/whdfs64.pdf

    This law would be enforced by the Wage and Hour Division of the U.S. Department of Labor at http://www.dol.gov. You can also post questions on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blog!~ Caitlin

  9. Lisa Says:

    Thanks Caitlin. Would you then recommend that a call center pay it’s telesales agents an hourly rate plus commissions or on a fluctuating -workweek pay plan? Do you still pay commissions to employees if you are using a fluctuating work week plan? Please help me understand the fluctuating work week plan.

    Thanks

  10. Caitlin Says:

    Hi Lisa! I cannot make a recommendation without knowing your specific situation, but usually if the telesales agents work 40 hours per week, they are on salary plus commission. If they work more than 40 hours per week, they are paid hourly plus commission. (Be aware that as a non-exempt employee, even a telesales agent on salary is entitled to overtime when working more than 40 hours per week.)
    The fluctuating work week is only legal in situations where the employees hours fluctuate above and below 40 hours per week over the year. If there are weeks when the telesales agent works 35 hours, and other weeks when the telesales agent works more than 40 hours, the fluctuating work week would be legal under federal law. But, if the telesales agent always works at least 40 hours per week, under federal law, the fluctuating work week is not legal. We have answered a number of questions on the fluctuating work week in the past — check the archives for fluctuating work week or belo plan. HTH, and have a great day!~ Caitlin

  11. Roy Says:

    Hello,

    I have a girlfriend that works for a large national banking group in an salaried admin position here in Florida. She does not make any decisions that effect the profitability of the business nor is she in charge of 3 or more employees. I am still a bit fuzzy on the exempt and non exempt definition for salaried employees so I can not state what her status in that regard is.

    The situation is this: Since we have been together she has been working more than 55-60 hours per week, and is not getting rest breaks. She is afraid to have a sick day stating that you must go to work sick and have them see you are sick before you can leave (or have a doctors note), and her 2 weeks of paid vacation can not be taken as one block of time off, it needs to be split. The reason I am sending this question is; it seems that she is really being taken advantage of, the situation is affecting the quality of our relationship, and she is not being compensated in any way for the extra time she must work. She does not work from home, she works at the company “campus” 5 days a week, and it really seems to be “unlawful” what they are requiring her to do.

    Can you please offer me some advice as to what questions need to be asked to qualify the situation and where to go to find a resolution to the problem.

    Thank you in advance,

    Roy

  12. Caitlin Says:

    Hi Roy, We understand your concern, and it certainly sounds like your girlfriend works more than you would like her to. But nothing in your post sounds illegal. Administrative personnel are one category of exempt employees under federal law. It sounds as it your girlfriend would fall into that category. If not, she is entitled to overtime when working more than 40 hours per week.
    Here’s the U.S. Department of Labor Fact Sheet on exempt employees: http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17a_overview.pdf
    Many companies routinely require exempt employees to work 55 to 60 hours per week, and there is no law against it. In fact, they could require her to work 80 hours or more per week. Neither Florida nor federal law requires meal or rest breaks for employees. OSHA standards require that employees be allowed to drink water while working, and to use the restroom when nature calls. Many, perhaps most companies only permit employees to use one week of vacation at a time, even if they have 4 or 5 weeks of vacation. Companies can legitimately require a doctors note for any sick days, as long as they apply this policy to every employee.
    You say that your girlfriend is not being compensated for all this extra work, but her employer would say that her salary is her compensation for all this work. Presumably, an employee with these kind of responsibilities is paid more than an administrative employee with fewer responsibilities.
    Our experience has been that much misery in the work world is caused by the belief that a normal work week is 40 hours. This case is a perfect illustration. In fact, there is no standard work week in the U.S. Employees work whatever their employer wants them to, or whatever they agree to. So there is no extra time here, to require additional compensation. You can also post your questions on our sister site at http://www.laborlawtalk.com. HTH, and thanks for posting a great question!~ Caitlin

  13. Roy Says:

    Thanks for the reply Caitlin,

    I am under the understanding that an “exempt” status in administration requires a position where the employee is responsible for significant or independent decisions that affect the profitability and/or operations of the company. In her situation, her job duties do not meet, or fall into, that critera. Her job consists of processing information, not making any decisions regarding the information being processed. There is a clearly defined proceedure that is followed where no decision making of any significance is made in the process, which results in the change of, or minipulation of, the data being processed.

    Am I incorrect in assuming that in this case her job would qualify as “non exempt”?

    Thanks again,
    Roy

  14. Caitlin Says:

    Hi Roy, Sorry but the exempt/non-exempt status is not a distinction that we could make online. In some cases, the U.S. Department of Labor has judged that office managers were exempt because they decided which office supply company to purchase from. In other cases, employees were considered exempt because they processed payroll, even though there were clear procedures in place for those actions. For a final determination, you will need to consult the U.S. Department of Labor, Wage and Hour Division. They will investigate the case, including all of your girlfriends job duties, and make a determination. Thanks for your comments!~ Caitlin

  15. john Says:

    I am an employee paid by commission, and I always work over 40 hours a week. Sometimes up to 60 hours. But I am never copmensated for the overtime I put in. The only time I receive a hourly rate(7.73 base) is when my hours add up to more than my commission for the entire week. Either way I am paid it never involves an overtime rate. If my commission is more than my hourly and I work 55 hours that week, I am paid only by the commission rate. If my hourly is more than my commission rate and I work 55 hours that week, then I am paid by my hourly rate $7.73 for the 55 hours. No time and a half. Is this legal.

  16. Caitlin Says:

    Hi john! No, this is probably not legal. When you work 55 hours in the week, your rte of pay should be based on 40 hours of straight time plus 15 hours of overtime. We are assuming that your employer is covered by the federal minimum wage and overtime law. HTH, and thanks for reading the blogs!~ Caitlin

  17. BARBARA Says:

    I answered an ad for a job that was listed as a sales person. The job offer was salary plus commission. After I started the job I am the only person and I am the store manager, in charge of the place. No one reports to me, but I got screwed, with the pay because the ad listed someone for sales and I clearly am the store manager. The owner has no I-9 form filled out on me, there is no such form I hear, but I used to be in HR and know the law. There are no employment posters either.

    I received my second paycheck today, this is the first one that I received commission on it, but what concerns me is that he lumped my salary and commission together, it that legal. I make 400.00 for salary a week, which I know federal law says that 455.00 and under receive over time pay for over 40 hours, well if he is adding my commission to my salary as a lump sum than it will look like I made over $455.00. Plus no one is reporting to me and since he advertised this job incorrectly is there anything I can do.

    I live in Florida.

  18. Caitlin Says:

    Hi Barbara! You are right to be concerned. Under both Florida and federal law, the employer should provide an itemized pay stub that seperates your salary from commission. You are also correct that your primary duties and weekly salary do not qualify you as an exempt employee.
    One option is for you to contact the U.S. Department of Labor regarding your exempt/non-exempt status. (If the store accepts credit cards, they likely are covered by federal employment laws.) Another option in Florida is to take the employer to small claims court to collect any overtime you are due. Finally, in most states, an employee who quits because the employer is engaged in illegal conduct, or misrepresented the job, qualifies for unemployment. HTH, and thanks for reading the blogs!~ Caitlin

  19. Roger Says:

    In December of 2008 I was changed from hourly to salary and – for some time – I thought that I met the requirements for an Administrative Exemption. My primary duties specifically deal with processing payroll, printing checks for accounts payable (not signing/authorizing), policy formation and implementation, human resources, and employee file maintenance. Following a recent change in organizational structure, I have been told that I am to supervise two full-time employees to maintain my exempt status, but I no longer have a role in formulating policy or human resources. This seems like I am being reclassified for an Executive Exemption, but I am honestly not sure that I meet that definition. Any thoughts?

  20. Caitlin Says:

    Hi Roger! We agree that you have been changed from an Administrative exemption to an Executive exemption. As long as you have the power to hire and fire these two employees, and manage a division or department of the enterprise, you are an exempt Executive. The term “executive” confuses many people, but it does not really denote a CEO. Bear in mind that Assistant Restaurant Managers and Assistant Managers in retail stores are also exempt “executives.” If you feel you do not meet the requirements of an exempt executive, contact the U.S. Department of Labor, Wage and Hour Division. Hope this helps, and thanks for reading the blogs!~ Caitlin

  21. Len Says:

    I am a salaried worker, who at this point has worked for my company in an administration position for less than 6 months which is the required time for an employee to qualify for sick time. Recently, I was out sick for one day, but the time that I worked for the two week pay period was in excess of the eighty hours, yet when I recieved my pay check it was minus the eight hours that I was out sick. If the employee is salaried how can they deduct the amount from the amount recieved, especially if they worked over the minumium hours for the week. Len

  22. Caitlin Says:

    Hi Len! This deduction was lawful. When the employer has a valid paid sick leave policy, the exempt employee need not be paid when they miss an entire day. Your assumption that 40 hours constitutes a work week is not valid for an exempt employee.~ Caitlin

  23. Werder Bremen Amateure Says:

    Interessanter Beitrag, vielen Dank.

  24. Caitlin Says:

    Danke for the kind words, Werder! Check back often — we post new material at least 5 days per week. Thanks for reading!~ Caitlin

  25. jeffro19 Says:

    i just started a job as a vending route drive my task consist of driving 50 plus miles away from warehouse filling soda and snack machines, taking inventory,ordering product,loading the truck. and i do all this for salry $500 a week and im averaging 56 hours per week. they told me i would not receive a comission checks till after 90 days but im about to start my 4th week and i will be going without the supervisor now. also they said i will not receive sick days till after ive been there a year. thankyou for taking time to read this concern

  26. Caitlin Says:

    Hi Jeffro19! The only part of your post that causes us concern is whether or not you are entitled to overtime. Everything else sounds legal. The employer can wait 90 days to pay commissions.

    There is no requirement that any company give paid sick leave to workers, ever.

    If you are genuinely an exempt employee, you can be required to work 56 hours per week or 100 hours per week for any salary over $455 per week, under the federal FLSA. Exempt employees are not entitled to overtime. There is not enough information for us to determine if your job duties genuinely qualify you as an exempt employee. For a definitive answer, contact the U.S. Department of Labor at http://www.dol.gov. HTH, and thanks for reading the blogs!~ Caitlin

  27. jeffro19 Says:

    thank you for your time.

  28. Caitlin Says:

    You are very welcome, jeffro19!~ Caitlin

  29. Melissa Johnson Says:

    My husband is a site manager. He has been in this position salaried for 4 years. On average he has worked 50-60 hours per week. Recently his new VP has added a mandatory call 2-3 hours per night, 6 nights per week. This has now put his weekly hours up to 84 hours per week. He is not highly compensated making only 42500 per year. His dutes do not affect the profitability of the company nor does he hire employees. This new schedule has taken all or most of his time from his chldren. These calls are considered mandatory includng his normal days off. I am not sure this is legal. Could anyone help me?

  30. Caitlin Says:

    Hi Melissa! If your husband is an exempt employee, this is legal. HTH, and thanks for reading the blogs!~ Caitlin

  31. Mike B Says:

    I have a friend that was hired as a “chief engineer” at a hotel that apparently has no money. They are giving him 27,000 a year before taxes but they are working him 70-80 hours a week. He has no hire or fire power, his job has him doing labor all the time. Because he is making slightly over 500 a week (before tax)can they get away with the hours and no over time pay? He has a high title and fixes stuff for the hotel but again does not hire or fire, has a list of things that he is told to fix and works up to 80 hours a week.

    Is he entitled to overtime pay?

  32. Caitlin Says:

    Hi Mike B! This arrangement for chief engineers is typical of the hotel industry, and extremely widespread. Probably 90% of hotels have this arrangement where the chief engineer works 60 to 80 hours per week fixing rooms, yet is an exempt employee. This is not necessarily a sign that the hotel has no money — it is the standard for the industry. Some chief engineers supervise a few employees; others have no staff at all.
    This may be a violation of the federal FLSA, the Fair Labor Standards Act. Frankly, we are not sure how the hotel industry gets away with this, because as far as we can tell the chief engineer engages in manual labor and does not fit into any of the 5 categories for an exempt employee under the federal FLSA. Your friend can certainly file a wage complaint with the U.S. Department of Labor, claiming he is owed overtime. They will investigate, and if they find he is owed money, they will sue the employer at no charge to your friend. We would love to see someone successfully challenge this industry practice in court. HTH, and thanks for reading the blogs!~ Caitlin

  33. steve Says:

    I am a contractor for fedex ground. I have been a single P&D (pick up and delivery) route owner for about 6yrs and now I am planning on buying multiple routes and hiring employees to work for me. My question is I want to pay my employees a salary of $650wk with monthly bonuses. They will be working between 40 to 60 hrs a week. Will they qualify for overtime pay and if so how do I go about ajusting there pay to prevent any grievances on a salary based payroll.

  34. Caitlin Says:

    Hi steve! No, this is not legal and you should probably consult an HR specialist, the U.S. Department of Labor or an attorney specializing in employment law. Because your drivers are delivering packages from out of state, they are covered under the federal FLSA or Fair Labor Standards Act. That law requires that drivers and others who perform manual labor be paid overtime when they work more than 40 hours per payroll week. The overtime must be at a rate equal to 1.5 times their average hourly rate for the week. If you are paying $650 for 40 hours, their overtime rate must be $24.38 per hour. Drivers are never exempt employees under the FLSA, even if they are on a salary. In addition, you must keep accurate records of all time worked by your employees and hours paid. To avoid lawsuits and attorneys fees over $40,000, any small business owner who is not an HR expert should get competent advice on this and other HR issues in advance, before hiring workers. HTH, and thanks for reading the blogs!~ Caitlin

  35. John Says:

    I live in FL. I work as a propane bobtail driver for over 2 yrs, deliver propane to residential and commercial customers. My pay is $400 wk salary and .03 cent per gallon I pump. During the summer I average 45+ hrs week and winter 80 plus hrs a week (DOT Dept of Transpertation say a commercial vechile drivaer cannot work more than 70 hrs wk). Alot of time my chks average on $5.50 hr when I say something they always say I am salary no overtime and since salary no time clock and can not prove anything, just be glad you have a job. Any suggestions? and is this legal?

  36. Caitlin Says:

    Hi John! There are two issues here — pay and Florida employment law enforcement. You may be entitled to a higher rate under the Florida minimum wage. However, collecting is harder in Florida than in other states. Most states have a department of labor that enforces state labor laws — Florida does not. You would have to hire an attorney to sue the employer for back wages.

    Under both state and federal law, the employer has to accurately track the hours you work. Since they are not doing so, they are already in violation of the law. You should keep a written record of the times you work each day. In most cases, if the employer has no records, the department of labor will accept yours.

    You may very well be entitled to overtime under federal law, and that is probably your better bet. You can file a complaint with the U.S. Department of Labor at http://www.dol.gov. They will investigate. If they find you are owed back wages, they will sue the employer for you.

    You should also file a complaint with the U.S. DOT about the driving hours. HTH, and thanks for reading the blogs!~ Caitlin

  37. Enrique Says:

    Hi! I was hired by a south florida company to build a dispatch department. they have a number of drivers that are getting paid by “routes” as they call it, but in reality they are getting paid by deliveries made.each place they deliver they get a specific amount for delivery and pick up.The current schedule has a number of drivers coming in twice a day morning/evening and with just one day off. The management wants to change the drivers to an hourly rate and deviate from paying them by the delivery, they are saying that they are not within “the law” by paying per delivery rather than by the hour. i guess my question is: is it really illegal to pay a driver in the metropolitan area a specifc amount per delivery/pick up? if it is why? or at least where can i get all the right information about this? just for reference this company delivers textiles.

  38. Caitlin Says:

    Hi Enrique!
    Yes, the company is doing the right thing by converting the drivers to an hourly rate. We cannot say for sure that paying by the route was illegal without more information, but it might have been.
    The federal FLSA requires that employees be paid at least the minimum wage for all hours worked, and overtime when working more than 40 hours per week. Under the old system, if traffic was bad or there was severe weather, a driver might have ended up working 43 hours one week but not be paid overtime. This is a violation of federal law. If there were times when the employees did not average the minimum wage of $7.25 per hour, that would also be a violation of federal and Florida minimum wage laws.
    There is also a safety issue here. When a driver is paid by the route, he has an incentive to drive 100 miles per hour, to make more money or finish work early. A driver paid by the hour has an incentive to obey the speed limit and other laws.
    So the employer is doing the right thing by paying the employees on an hourly basis. However, the employer may also be using this excuse to reduce the drivers wages. (We are guessing that they would not be complaining if this resulted in higher earnings.)The drivers fear that this new system will result in them earning less, and they may very well be right. Unfortunately, there is no law that prevents an employer from reducing an employees wages, as long as the employee is informed in advance.
    Really, the legality of the old “route” method is irrelevant. Any employer has the right to pay workers an hourly rate if the employer chooses to do so. It is also completely legal in Florida for an employer to require workers to come in twice per day. If the employee was required to wait on company premises for a load, he would be entitled to payment for that time under the federal FLSA.
    There is no federal or Florida law that requires an employer to give the employee a day off, ever. Employees can be required to work 365 days per year. HTH, and thanks for reading the blogs!~ Caitlin

  39. Enrique Says:

    what kind of information you need to determin if it was illegal or not??? I would like to know what is the wrong in paying by route/delivery? I do get the part about the speeding, however the company equipment is governed not to exceed over 65 mph, also equiped with a gps system that sends and alert if by any chance the system is tampered with and a company vehicle goes over 70mph.thank you so much in advance :)

  40. Caitlin Says:

    Hi Enrique! You are probably asking the wrong question. The question you should be asking is,”Does the employer have the right to change the way drivers are paid?” The answer is yes, they do. Even if paying drivers by the route was legal, the employer still has the right to change to hourly pay.
    (In order to determine if the former pay was lawful, we would need to know exactly how much each driver earned, and how many hours he worked, in each payroll week for the past 3 years. But again, even if the former payment method was lawful, there is no law that keeps the employer from changing it.)
    The governors on the trucks do not prevent them from doing 65 mph in a zone where the speed limit is 35 mph, running red lights or committing other safety violations.
    The real issue is this: the drivers do not want anything to change. Unfortunately, the employer has the right to change working conditions — and change is a constant in the marketplace. An excellent book on this topic is “Who Moved My Cheese.” HTH, and thanks for reading the blogs!~ Caitlin

    P.S. If the employees feel they were underpaid in the past, they can file a wage complaint with the U.S. Department of Labor at http://www.dol.gov. Since the employer has already admitted that they broke the law, the employees would probably receive back pay.

  41. Enrique Says:

    Thank you very much for all your help!

  42. Caitlin Says:

    Hi Enrique! Be sure to read the P.S. I added to the last post — and you are very welcome!~Caitlin

  43. Michael Says:

    Hi Caitlin. I am a Registered Nurse and have been employed by a large managed care organization for the past 10+ years via a contract with the Agency for Health Care Administration. Under this contract we conduct onsite quality of care reviews of outpatient behavioral health providers that are reimbursed through Medicaid and report those findings back to the State of Florida. This is a salaried, non-management poition. I supervise no one. Due to the increasing focus on the bottom line and the expectation that we produce much more with much less, I am now traveling and away from home overnight at least three days every week, working 10-12 hour days, often extending into the evenings at hotels, as well as Saturdays and Sundays at home. I never eat lunch and rarley take bathroom breaks during working hours, which is seen as a positive by my employer. When we voice our concerns to administration, it falls on deaf ears. Any legal recourse?

  44. Caitlin Says:

    HI Michael! Unfortunately, there is probably no recourse here. As an RN, you are likely a salaried exempt Administrator or Professional. Exempt employees can be required to work any number of hours, even 100+ hours per week, without additional pay. OSHA regulations require that employees be permitted to use the toilet when nature calls, but there is no state or federal law requiring meal breaks for exempt employees. Employers will continue to demand more and more of salaried workers, as long as they can find someone to work under these conditions. Your only real option is to look for a job with better working conditions. Sorry, wish we could offer another solution. HTH, and thanks for reading the blogs!~Caitin

  45. Randy fairchild Says:

    Caitlin,
    I have recently taken a position as a Division Manager. There are no supervisory needs at this point due to me being the only one in the division. I am paid a salary for 40 hours but due to me being the only one currently in the division I have to be available 24/7 to handle service calls as well as my managerial responsibilities. I feel as if I should be charging for O/T when these calls are needed after hours. Your thoughts?

  46. Caitlin Says:

    Hi Randy! The issue is whether you are an exempt or non-exempt employee under the federal FLSA. When the employer merely gives you the title of Division Manager, that does not automatically make you an exempt employee. It depends upon your primary duties — how you spend most of each work day. From your post, we do not have enough information to determine if you may be an exempt Administrator, Professional or Computer Pro. (You are not an exempt Executive at this point, because that requires supervising at least 2 employees.)
    This is important because a non-exempt employee is entitled to overtime when he works more than 40 hours per week.
    An exempt salaried employee is never entitled to overtime, even if he works 100+ hours per week. This is true even if the exempt employee is on call 24/7, and frequently called out. The concept of a “40-hour week” for an exempt employee is pretty much an illusion.
    If you would like to post more details about your position, we will try to determine if you are exempt or non-exempt. HTH, and thanks for reading the blogs!~ Caitlin

  47. Linda Says:

    Caitlin,
    I am a salary plus commission supervisor. I recently had my salary lowered to $15,000 annually with a new comp plan issued. What is the minimum salary in Florida? I calculated as 40 hrs per week and it is less than Florida Min. Wage of $7.67. Is this legal with a plus commission position?

  48. Caitlin Says:

    Hi Linda! The federal FLSA generally offers more protection than the Florida minimum wage statute. If you did not earn commissions, your salary of $15,000 would be too low for you to qualify as an exempt employee under the federal FLSA. You would be entitled to at least the minimum wage plus overtime when working more than 40 hours per week.
    When a retail employee is paid by salary and commission, both salary and commission during a payroll week are considered in determining whether the employee is earning more than the minimum wage — not salary alone. Generally, the salary plus commission during a representative period must be at least 1.5 times the federal minimum wage of $7.25 per hour.
    Under Florida law, you are entitled to $7.67 per hour worked. However, this is based on the total of both salary and commissions. Because Florida does not have a state agency to protect the rights of workers, you must sue the employer to be paid. That is why it is better to focus on the federal law, enforced by the U.S. Department of Labor at http://www.dol.gov.
    Read more about this situation at the link below.
    Be aware that recent court cases have ruled that retail managers may be entitled to overtime under federal law. HTH, and thanks for reading the blogs!~ Caitlin

    Read more about this at: http://www.dol.gov/compliance/topics/wages-commissions.htm and http://www.dol.gov/whd/regs/compliance/whdfs20.htm

  49. ChristopherK. Says:

    I am classified as an “area manager” for a construction project management company whose corporate office is in south Florida and I, work in central and north Florida.
    I only manage independent contractors in my position as no direct hire employee/s works under or with me. I often work more than 13 hours a day as I constantly update schedules, reply to or answer e-mails and phone calls after hours.
    No one keeps track of my hours but, I am expected to answer and or reply to emails and phone calls regardless of the hour.
    All the research I have done, I cannot find anything close to my situation due to the companies’ lack of monitoring of my hours. I know that there are times that I do work less than 40 hours.
    I am a salary employee with a “salary” of $58,600.00 (as per my 2011 W-2) and have no benefits. No 401K, medical, dental, vision, health, life, fuel or travel reimbursements. I was told verbatim “If I want them, get them myself” and that I “will not get more than a pay check”.
    I guess the question would be, other than “he says she say’s” what leg do I have to stand on in an overtime dispute? And, is a company required to offer some type of benefits package or reimbursement?

    Thank you for your time and attention.

  50. Caitlin Says:

    Hi ChristopherK! These are poor working conditions, but based on everything you have told us so far, they are legal in Florida.
    There is no state or federal law that an employer must provide benefits such as health insurance, 401k, paid vacations, etc. A few states require that employees be reimbursed for mileage, but Florida does not.
    From what you have said, we believe you meet all the criteria as an exempt Administrator under federal and Florida law, specifically the federal FLSA. When a salaried employee is exempt, he is never entitled to overtime, even if he works 120 hours per week. The employee is paid a weekly salary that covers all the hours he works each week. Therefore, overtime is irrelevant. The employer is not required to track hours worked by exempt employees.
    If you check the archives, there is a lot of information on this site about exempt employees.
    In some cases, employers do miss-classify a non-exempt (hourly) employee as exempt. When that happens, if the employee has kept a written record of hours worked each week, and the employer has no written record, the U.S. Department of Labor accepts the employees record of hours worked. However, again, based on what you have told us, you are correctly classified as an exempt employee. We agree that these are miserable working conditions. However, your time would probably be better spent looking for a better job, rather than trying to collect overtime from your current employer. HTH, and thanks for reading the blogs!~ Caitlin

    Read more about the Administrative Exemption at: http://www.dol.gov/whd/regs/compliance/fairpay/fs17c_administrative.htm

  51. ChristopherK. Says:

    Catlin,
    thank you for your responce.
    A question that I have now is, to be an exempt employee, would I not have to be notified or have had to sign something indicating that?

    Thank you,

  52. Caitlin Says:

    Hi ChristopherK! No, there is really nothing that you would have to sign to be exempt. While a few states such as New York require that exempt employees be notified in writing, most states — including Florida — do not.
    Normally an exempt employee is told “Your salary is $x per week.” or “You are a salaried employee” or “Your salary is $58,000 per year” rather than “You are being paid $xx per hour.” The employer would argue that even if notification were required, that would be sufficient. But again, in Florida no notification is required for an employee to be considered exempt.
    This is a complex issue and we are always here to answer your questions. HTH, and thanks for reading the blogs!~ Caitlin

  53. ChristopherK. Says:

    Thank you Catlin.

  54. Caitlin Says:

    You are very welcome, ChristopherK!~ Caitlin

  55. Jimmyb Says:

    I work in new/used car sales for a major car dealer that recently shifted to a new pay plan. I am paid on a small salary (below the federal $23,600 exemption status threshold) plus flats for sold units, plus bonuses that vary throughout the month. I am required to work more than 40 hours per week (50 hours minimum), often times working between 60-80 hours per week. I am classified as a specialist for selecting vehicles only. In my pay plan it specifies the fact that I do not “sell” vehicles, as I am not listed as a salesperson. I do not partake in the numbers or negotiations, nor any of the financial paperwork as a traditional salesperson would at another dealership. I am solely responsible for showing and selecting vehicles with customers and I compensated if a manager sells a vehicle on my behalf or not (more if it sells). My employer has classified me as a overtime exempt employee. Is this the job exempt or I am entitled to overtime?

  56. Jimmyb Says:

    Can I get an answer on this question?

  57. hrlady Says:

    Your position is most likely classified as exempt, meaning it is exempt from overtime. An exempt employee normally works more than 40 hours in a workweek. Under the Fair Labor Standards Act your position is probably classified under one of the following listings:
    Commissioned sales employee of retail or service establishments are exempt from overtime if more than half of the employee’s earnings come from commissions and the employee averages at least one and one-half times the minimum wage for each hour worked. You stated you are paid a salary and commissions and bonus; or
    Salesmen, parts men and mechanics employed by automobile dealerships are exempt from the overtime pay provisions of the FLSA.
    Your position would fall under one or both of the above exemptions.

  58. mike Says:

    I an salary i have 6 guys i can hire or fire but i am working 2am till 4 or 5pm everyday. I am reqired to put this overtime so my workers dont get overtime. I am working as a labor. i load and unload truck at least 10hs a day. is this legal.

  59. hrlady Says:

    Hi Mike,

    Fair Labor Standards Act (FLSA) defines that some employees are exempt from overtime pay provisions. An exempt employee (managing other employees) can be required to work whatever hours are needed to get the job done.

    Other positions such as a driver, driver’s helper, loaders and mechanics are exempt from the overtime pay provision of the FLSA if employed by a motor carrier, and if the employee’s duties affect the safety of operation of the vehicles in transportation of passengers or property in interstate or foreign commerce.

    It appears that you fall into two categories for exemption of the overtime rule. Although it does not seem right that you are required to work many hours, it is legal for your company to require the hours.

    Thank you for reading the Humanresourceblog.com

  60. Andy S Says:

    I work delivering cases of liquid beverage by myself on a semi truck. I work usually a minimum of 8 hours a day and up to 14. I am a CDL driver. Making 675 a week salary. Am I entitled to overtime in Florida?

  61. hrlady Says:

    Hi Andy S.,

    Federal law provides for an overtime exemption for employees who fall under the following categories:

    1) That you are employed by a motor carrier or motor private carrier as defined in 49 U.S. S. section 13102;
    2. Drivers, driver’s helpers, loaders, or mechanics whose duties affect the safety of operation of motor vehicles in transportation on public highway in interstate or foreign commerce and;
    3. Not covered by the small vehicle exception which mean a vehicle weighing 10,00 pounds or less.

    Florida does not have any specific laws regarding overtime so federal laws apply.

    Thank you for reading the Humanresourceblog.com.

  62. Bill Johnson Says:

    I am in retail sales and get paid $10 per hr. plus commission. If I work over 40 hrs per week, am I entitled to overtime $15 plus comm?

  63. hrlady Says:

    Hello Bill,

    The U. S. Department of Labor states that employees of retail establishments may be covered by FLSA in either two ways. Employees may be non-exempt meaning they are paid an hourly rate and they are entitled to overtime at time and one-half after 40 hours per week. Or certain retail or service employees are paid by commissions and may be not eligible for overtime. To be considered exempt from overtime, in a retail establishment, the following three conditions must be met:

    • The employee must be employed by a retail or service establishment, and

    • The employee’s regular rate of pay must exceed one and one-half times the applicable minimum wage for every hour worked in a workweek in which overtime hours are worked, and

    • More than half the employee’s total earnings in a representative period must consist of commissions.

    Unless all three conditions are met overtime premium pay must be paid for all hours worked over 40 hours in a workweek.

    Without knowing your pay or responsibilities, you should discuss your situation with your Human Resource department.

    Thank you for reading the Humanresourceblog.com

  64. T Says:

    Hello, my mom works in a sewing industry and gets paid by piece and or by hour (if it is an alteration piece). In two weeks she worked 97 hrs and got paid $500 flat. She worked 5 days 10 hrs shifts (average). Is this legal?

  65. hrlady Says:

    Hi T,

    When you work by piece rate, productivity can be increased or decreased depending on various factors. Even though an employee works by piece rate, their pay must work out to at least the minimum wage, even though production levels are lower. In addition, if an employee works more than 8 hours per day, they are still entitled to overtime.

    Your mom should review the pay stub, and discuss it with the person in charge of payroll. It may be that the $500.00 was a net pay and not gross, or an error may have occurred.

    Thank you for reading the Humanresourcesblog.com

  66. Liz OConnor Says:

    I worked for an Dental Office as a Front Desk Clerk and was given a schedule to work 39.5 hours a week on salary. Once I started, I was required to work 10-12 hour days without additional compensation. I quit as a result shortly therafter. They retaliated by holding my paycheck and blocking me from accessing my paystub online. Am I owed overtime pay and how do I go about addressing this matter. I would very much like to fight back.

  67. hrlady Says:

    Hi Liz,
    An exempt employee can be required to work as many hours as required to get the job done. With your original work schedule of 39.5 hours you were paid a certain salary. A salary exempt employee is NOT entitled to overtime regardless of the number of hours worked each week. Therefore you can be required to work 39.5 or 60 hours with no overtime pay.
    Thank you for reading the Humanresourceblog.com

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