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Mar24

Salaried Exempt in Florida

Are salaried managers entitled to overtime under federal law in Florida?

The law covering this issue is the FLSA, or Fair Labor Standards Act. The FLSA requires all employers to pay their workers “time-and-a-half” for overtime, or 1.5 times their regular hourly rate for hours over 40 worked in a given week. Under the law, however, some salaried employees as well as wage-earners are entitled to overtime.

Employers are often caught unawares by this fact. The FLSA, however, has created two categories of salaried workers. One group is entitled to overtime (the salaried non-exempt). Another group (the salaried exempt) is not entitled to receive overtime pay.

The issue is a complex one, but federal law offers a few guidelines for determining which employees are exempt, and therefore not entitled to overtime. Merely labeling someone a “manager” is not sufficient. Job duties and pay are two of the significant guidelines when determining into which category a salaried employee falls.

First, if a salaried employee earns more than $455 per week, he or she is salaried exempt (not entitled to overtime). Any salaried employee earning less than that amount is non-exempt.

Second, job duties will play a major part in determining who is exempt. According to federal law, employers may exempt highly compensated employees, outside sales people, computer employees, administrative employees, professionals with advanced degrees, and executives.

Executives must oversee the work of two or more employees to be counted as exempt. Administrative employees are those who are allowed to exercise independent judgment in important business areas. The purchasing agent who chooses vendors would be exempt. The administrative assistant who phones in the orders would not be. Highly compensated employees are those earning $100,000 a year or more for non-manual labor.

Professionals with advanced knowledge would include emergency room doctors, pharmacists and the like. Creative professionals, such as sculptors and artists, would be salaried-exempt. Computer programmers, system analysts, and software engineers would be exempt.

The issue is complicated by the fact that some states have passed their own overtime laws. In those cases, a salaried worker who would not be entitled to overtime under federal law may be entitled under state law. JH

This entry was posted on Monday, March 24th, 2008 at 12:21 pm and is filed under
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41 Responses to “Salaried Exempt in Florida”

  1. sean o'connell Says:

    I am a salaried employee with a gross income of $1800 per week. I have a crew of as many as 9 people. I do make decisions, on behalf of the company, in my position. I generally put in approximately 55-60+ hours per week, which does NOT include the travel time of 2+hours, one way, at the previous as well as the present job. (Company truck) Am I entitled to ANY compensation (ie, overtime) under Florida state law?

  2. Caitlin Says:

    Hi Sean! From your description, you probably qualify as an exempt executive (or manager) under federal law. That would mean that you are entitled to compensation of $1800 per week, but not additional wages for overtime. As an exempt employee, your weekly salary covers all the hours you work. We will point out that many, many people right now would be happy to have any job, much less a job that pays in excess of $90,000 per year. However, we can only guess at your exempt/non-exempt status. For more info, contact the U.S. Department of Labor. HTH, and thanks for reading the blogs!~ Caitlin

  3. Tim Shortino Says:

    I hope someone can help me understand how this works. I am a salaried manager of 1 person.(which makes me non exempt?) I make $769 per week and I am considered exempt by my company. I spend part of my work time at a desk placing orders, planning work, etc and the other part is manual labor maintaining the building (painting, changing light bulbs, fixing anything that is broken). I thought that if part of your job was manual labor that you were non exempt. I usually work 45 hours per week but there are times when this jumps to 60-70+ hours per week. Am I being taken advantage of? Is there anything I can do? Am I really exempt?

  4. Caitlin Says:

    Hi Tom! The exempt or non-exempt status is not really that simple. It depends upon the employees primary job duties. Since you only supervise one employee, you probably do not qualify for an executive exemption. However, that is only one of five different types of exempt employees. An employee who performed only manual labor, and never administrative work, would not be exempt. But an employee who performs some manual labor may be exempt, depending upon his or her primary duties.
    For example, a restaurant assistant manager who placed food orders and did payroll would be an exempt administrative employee. This is true, even if the assistant manager sometimes busses tables or acts as food server. In fact, in some weeks the assistant manager could bus tables for 40 hours in the week and still be considered exempt. That is because his or her primary duties have not changed.
    We have included a link to a federal Department of Labor fact sheet about exempt employees. After reading it, if you are still unsure whether you should be exempt or not, the only way to tell for sure is to contact the U.S. Department of Labor at http://www.dol.gov. HTH, and thanks for reading the blogs!~ Caitlin

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

  5. Erin Says:

    Hi Caitlin. My fiance is an assistant call center manager in Gainesville, FL, overseeing anywhere from 20-80 employees. He was originally hired in 2003 as an IT Specialist, and was basically forced into the assistant manager position in early February when the president of the company decided that the person currently holding the position had reached their potential and was no longer qualified for the job. He is a salary employee, grossing about $1100 biweekly, taking home $900, which is what he was making before the “promotion” – no raise with the new title. The company is moving to the other side of town, and for about the past month, he has been working upwards of 70 hours a week networking the ENTIRE call center, moving bays, computers, servers, office equipment, etc – not to mention he is going on a month now with no day off. What are his rights as far as overtime pay is concerned?

  6. Caitlin Says:

    Hi Erin! Unfortunately, your boyfriend is probably an exempt employee, either as an Executive (manager) or as a Computer Pro. Exempt employees receive no overtime under FLSA, even when they work more than 70 hours per week. If your boyfriend did not meet the guidelines for an exempt employee, then he would be entitled to overtime under federal law. HTH, and thanks for reading the blogs!~ Caitlin

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

  7. Erin Says:

    Thank you for the quick reply. Though it’s not what I was hoping to hear, I’m glad I can stop stressing over wether he should be getting OT or not :-)

  8. Caitlin Says:

    Hi Erin! You are more than welcome! Feel free to post any additional questions you might have!~ Caitlin

  9. Bonnie Says:

    I am a salaried employee who makes $483 a week, recently I had to come to work at 10am as opposed to 8am. They docked my pay for the 2 hrs is this legal? I work well over 40 hrs in a week and do not expect OT…

  10. Caitlin Says:

    Hi Bonnie! No, as long as the employer is covered by the federal minimum wage law, this is not lawful. They are treating you like an hourly employee and must either pay you for the two hours, or pay you overtime. Show them the fact sheet below. If that doesn’t work, contact the U.S. Department of Labor, Wage and Hour Division at http://www.dol.gov. HTH, and thanks for reading the blogs!~ Caitlin

    Read more about this at: http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17g_salary.pdf

  11. Kristi King Says:

    I have a question? I am a salaried restaurant manager in Florida. biweekly I make $1076.00 I am expected to be available by phone 24 hours a day, At a moments notice go to a meeting on my scheduled day off, work extra days when its busy and I mean scheduled an extra day I am given 7 days paid vacation once every 6 months…. It is now time for my vacation, and I am only allowed 6 days and no reason given to me for this. Also we are NOT allowed to call in sick, and if we do we get docked a days pay. Is it legal for them to ask so much and schedule us so much, but dock our pay when sick? I added up my hours one event week, and I made about 5 dollars an hour. I was exhausted and talked to like crap because sales were not where THEY wanted them to be. By the way in 2 years I have called out sick ONE time and that was because I was feverish and vomiting. Would you want someone working around your food like that? My pay was docked. Can someone help me out here? thank you so much!

  12. Caitlin Says:

    Hi Kristi! You are working a lot of hours, but that is lawful for an exempt employee. The employer can also set whatever limits they like on vacations.
    However, the employer must pay the exempt employee for sick days (if there is no bona fide paid sick leave program in place.) Contact the US Department of Labor about this. HTH, and thanks for reading the blogs!~ Caitlin

  13. james Says:

    I have a question concerning this area also. I work for a restraunt as an assistant manager and get paid $450 every week. I am required to work 50 hours and my store is a relatively slow store. i was told i had to work more hours because another manager was unable to work due to personal reasons and pushed me between 60-70 hours. is that legal for my area of work. Majority of what im doing is making food and mainly myself and maybe 1-2 others in the store.

  14. Caitlin Says:

    Hi James! This is legal if your gross salary is at least $455 per week. It is not unusual for restaurant managers and assistant managers to work 60 to 70 hour per week. ~ Catilin

  15. james Says:

    my gross salary is under 455 weekly which is why i was questioning this catilin.

  16. Caitlin Says:

    Hi james! In that case, you are entitiled to overtime under federal law. File a complaint at http://www.dol.gov. ~ Caitlin

  17. Mark Says:

    I am a computer professional and an exempt employee. I generally work 50-60 hours a week. As an exempt employee is it lawful for your employer to ask you to use PTO/Vacation time to take off 2 hours early?

  18. Caitlin Says:

    Hi Mark! Yes, this is legal. One of the purposes of PTO is to limit the amount of time that an employee can take off. As long as you are paid for the entire day, requiring an exempt employee to use PTO for partial days is lawful. HTH, and thanks for reading the blogs!~ Caitlin

  19. jeff goddard Says:

    I am a salaried manager who earns $43K per year and works 50 hours per week. My boss expects me 2 come in for meetings on my day off if i say i cant she treatens me is this legal what can i do

  20. Caitlin Says:

    Hi Jeff! Unfortunately, yes, this is legal. She could even make you work 7 days per week, every week and fire you if you did not. The only thing you can really do is look for a better job. HTH, and thanks for reading the blogs!~ Caitlin

  21. Colorado State Says:

    You have a new fan! I love your stuff here and will be back again.

  22. Caitlin Says:

    Thanks for reading, Colorado!~ Caitlin

  23. Leigh Sockalosky Says:

    I work well over 40 hrs per week as well as my two other fellow employees. Our boss is wanting to change us all to salry effective this pay period based on what we earned last year less what we already were paid this year. He is reducing our vacation and sick leave as well and says it will no longer roll over. We all have unused sick leave and vacation time from previous years does he have to pay us for these? Can he put us on salary and not pay us for over 40hrs if we work it? If he pushes the salary issue we are going to calculate how many hours we would actually be being paid for and only work those hours. So one of us would be off each day. Since we have to work Saturdays and Sundays.PLease advise what is legal?

  24. Caitlin Says:

    Hi Leigh! There are really two issues in your post: Overtime and Vacation. We will address each separately.

    As far as overtime goes, it is legal for an employer in Florida to pay any worker on a salary basis, rather than by the hour. However, you will probably still be entitled to overtime. In fact, you may find that you earn more for the same hours if you are paid salary plus time-and-a-half for overtime.

    Simply putting employees on salary does not make them exempt from overtime. Under the federal FLSA, employees in most jobs must be paid overtime when they work more than 40 hours per week — even if they are on salary. Only exempt employees are not entitled to overtime when working more than 40 hours per week. The FLSA recognizes only 5 categories of exempt employees: Executives, Professionals (like doctors and lawyers), Outside Salespeople, some Computer Pros and some Administrators.

    The federal FLSA applies to most employers in Florida. Even if you and your coworkers wanted to, you could not give up the right to overtime.

    If you and your coworkers refused to work additional hours after the change in salary, you could be fired for insubordination. A better idea is to work under the new arrangement for several months, then file a wage complaint with the U.S. Department of Labor at http://www.dol.gov. They will investigate, and if they find you are not exempt employees, they will require the employer to pay back wages for overtime. It is illegal for an employer to retaliate against an employee who files a wage complaint in good faith.

    Your other option is to quit. When an employee quits rather than accept a significant reduction in wages, hours or working conditions, ususally the employee qualifies for unemployment benefits. However, if the employee works even one day under the new arrangement, he or she has accepted it. If the employee quits after that point, they no longer qualify for unemployment benefits. (However, usually when an employee quits due to illegal conduct by the employer — such as not paying overtime to a non-exempt employee — the employee qualifies for unemployment.)

    As far as vacation time, unfortunately you will lose it under Florida law. There is no law that an employer in Florida must give paid vacation or sick leave to employees. If the employer does, the employer sets the policies regarding the paid leave, and can change them at any time. Some states would require that you be paid for your unused vacation (but not sick leave.) Florida does not. In this case, the employer gives (paid vacation time) and the employer can take away.

    This is a complex issue so if you need to post more queries in the comments, feel free to. HTH, and thanks for reading the blogs!~ Caitlin

  25. Jennifer Says:

    Hi Caitlin,

    I am an exempt employee in a sales position. I am working 60+ hours a week and from reading your blogs I understand that I am not entitled to overtime; however I have some other questions.

    Every Friday, everyone in my position notates that they worked 8a-5p with one hour of lunch time, when in actually we are told to work 9a-5p and can take a lunch or not. Is it legal to indicate these hours on the timecard when they are not the actual hours worked?

    Additionally, we were just told that to increase our sales numbers we need to not go to the bathroom when needed and eliminate too many breaks (2 breaks in the day is considered too many to this company)…I signed an agreement upon hire that they can fire me at any time for any reason (fyi) – I just do not think they they are in compliance on these issues.

    Thanks!

  26. Caitlin Says:

    Hi Jennifer! You are one-for-two on these issues.

    It is routine for exempt employees to turn in a time sheet that shows they worked 8-5 or 9-5 or 40 hours. This is because an exempt employee is paid the same amount, regardless of the number of hours worked.

    The federal FLSA requires that employers accurately track hours worked for non-exempt employees, but not for exempt employees. So this is a moot issue. If it makes you feel better (for example, if you believe you should really be a non-exempt employee) keep a pocket calendar with a written record of the hours you actually work each day. So the employer wins that one.

    But you win the second issue. An employer can demand that employees be more productive, and take fewer rest breaks. However, OSHA worker safety regulations require that employees be permitted to use the toilet “when nature calls.” That means as frequently as nature calls. The employer would have to be a real idiot not to understand that different employees have different bathroom needs. And that women have more frequent bathroom needs at certain times of the month.

    You should file a complaint with OSHA at http://www.osha.gov. We bet the employer will change this policy as soon as they hear from OSHA.

    You are protected from retaliation if you file a complaint with a state or federal agency, but not necessarily if you complain to the employer.

    Most states follow the tenent of “at will” employment. However, even under that doctrine, an employer is not allowed to fire an employee in retaliation for filing a complaint with OSHA or another state agency. HTH, and thanks for reading the blogs!~ Caitlin

  27. Mark Says:

    This blog has some great information, so here is my question. I am a salaried restraunt manager who exceeds the $455 minimum in a francised company. I work a great deal of hours and it has cost me significant quality of life and family time. I needed to leave work on time to pick up my daughter. My supervisor left me a phone message saying I needed to work later but I did not respond as I had already picked her up. The next day I was suspended without pay or reason given. In addition I was told the suspension was until further notice. Is this legal in the state of Florida?

    Thanks for the help
    Mark

  28. Caitlin Says:

    Hi Mark! Unfortunately, yes, if your daughter was healthy, this is legal. There are very few protections for workers in Florida, and few protections for salaried workers in any states.

    From the employers point of view, you did not have childcare for the hours you were required to work. That is a performance issue.

    If your daughter had a serious health condition, you might be entitled to time off to care for her or take her to a medical appointment. But in Florida, there is no law that protects the rights of parents to pick up healthy kids on time. HTH, and thanks for reading the blogs!~ Caitlin

  29. Debbie Says:

    I have been with my company for 11 years on salary. This year I was told I had to go to hourly pay because the Florida law is you have to manage at least three pepole to be salary. Is this true?

  30. Caitlin Says:

    Hi Debbie! This is partially true. The relevant statute is the federal FLSA, the Fair Labor Standards Act. That law requires exempt “Executives” to manage at least 2 full-time employees, with the authority to hire and fire those employees.
    There are 4 other classes of exempt employees, but in recent years the federal courts have put limits on which employees can qualify, based on job duties. Although you might still qualify as an exempt employee, the federal government is cracking down on employers who misclassify workers as exempt. So your employer is wisely erring on the side of caution.
    Either way, it is academic. The employer has the legal right to treat any and all employees as non-exempt, if they want to. The good news is that as a non-exempt employee, you will be entitled to overtime when you work more than 40 hours per week. HTH,and thanks for reading the blogs!~ Caitlin

  31. Debbie Says:

    Caitlin,
    Thank you for your reply, It did help.
    Debbie

  32. Caitlin Says:

    You are very welcome, Debbie!~ Caitlin

  33. Amy Says:

    I was a restaurant manager and worked more than 57+ hours/week sometime 70 hours. In 2010, my store reached the goals and the company told me, I will get the bonus of $5000 but my boss said he will hold on my bonus and see that this year (2011), if I could be able to control my labor cost and food cost right, he will give the bonus of 2010 back to me. Unfortunatly, last year was the bad economy. It is right that the company can do this for us? I still keep my paper stated that I have the bonus which the company holding on to. Now, I just quit this company, do I have the right to get my bonus in the past? Can you assist me? thank you

  34. Caitlin Says:

    Hi Amy! Since you were promised a bonus and met the goals to achieve it, you are morally entitled to it. A company can refuse to pay bonuses to all employees simply because the company does not have the money. However, that does not seem to be the case here. It appears the employer is trying to make excuses not to pay you the bonus. Unfortunately, Florida does not have a department of labor that can help you with this issue, as many other states do. You can file a claim for $5,000 against the employer in small claims court. You are not required to have a lawyer in small claims court — you can represent yourself. Show the judge any paperwork you have, and ideally he will force the employer to pay you. HTH, and thanks for reading the blogs!~ Caitlin

  35. Sheila Says:

    Caitlin I will make this as short as possible I have several questions.
    I am a substance abuse counselor at a methadone clinic. When I started working there I was on a hourly wage and 4 months of employment they forced everyone to salary, well the counselors not the nurses the nurses are on an hourly wage. Bi-weekly I make $997.04 which meets the $455.00 a week for salary first question is can a substance abuse counselor be an exempt employee. They have told us up until this point the advantages of being salary for us would be if he had a doctors appointment and need to leave early hour check or PTO would not be deducted, which they have started doing to all employees and also have required us to work OT but will only pay us for 40 hours, my understanding is they can not have it both ways you can not consider someone salary and doc their check if they do not have PTO and require them to work 7 days straight.
    We are all working with 80-84 patients because we have had 5 counselors quit and are above the state maxium.

  36. Mark Says:

    I am in sales and i have been switched from Commision to salary plus commison. I made to much money last year and they cut my pay along with 9 other employees.they know pay me a weekly and a monthly bonus with a sales bonus quarterly and a team bonus quarterly. The pay us 50% off the quaterly bonus if we have incramental increases from previous year.They keep the other 50% in case we do not achieve our plan at the end of the year. if we hit the plan they will pay us what is in the bank, but now we are being told if we do not hit our sales goal at years end we will have to pay back the 50% they gave us up front, keep in mind we have not been told how this plan works completely i have asked for this in writing and have got the answer No we will not put the plan in writing. i think what they are doing is not legal. i have been with this company for 25 years. also they may ask us to sign a do not compete contract. I get a $70,000 dollar salary plus a small % comm.

  37. hrlady Says:

    Hi Mark,

    It sounds like they placed you on a salary draw against commission pay. It is a very common way to compensate salespeople. And this type of payment arrangement can be beneficial as it helps with your cash flow.

    You should request a meeting with the HR department to explain in more detail the new pay policy.

    Thank you for reading the HumanResourceBlog.com

  38. Azeem Rehman Says:

    Q : Is there any law in florida that state that salaried assistant restaurant manager is required to work as a cook for uncetain period simply because there is not enough business and not get paid as a cook? It is to be remembered that the said person did not apply for a cook job but applied for a management job?

  39. hrlady Says:

    Hi Azeem,

    There is probably not a Florida law that covers this particular topic.

    Sometimes, rather than lay a person off, if other work is available management will place a person in that job, that is strictly up to the company.

    You should discuss your situation with management.

    Thank you for reading the Humanresourceblog.com

  40. Maria Says:

    Hello,
    I have a question, I work as QA-QC in a research company making $1080 groos weekly. I have been told that we cannot be paid overtime (exempt). Usually I work more than 90 hours bi-weekly, but when i need to go to the doctor my boos wants me to use my PTO or sick time (which I only have 2 weeks total a year). Also they are in the system of “accruing time per pay pariod”; therefore I cannot use my PTO as i whole, but as I acrrued it.
    Is legal in florida to “acrue” your PTo and sick time per pay period (non hospital setting -private practice with clinical research setting)and also force to use your PTo even though you had more hour put up on weekly basis? also no overtime?

    Thank you for your help!!!

  41. hrlady Says:

    Hi Maria,

    Florida does not have any laws requiring employees to provide employees with vacation benefits, either paid or unpaid. Florida’s legislature and courts are silent regarding any obligation an employer may have regarding vacation leave; including whether an employer must pay an employee accrued vacation leave. Employers in Florida are free to establish the vacation leave policy in their companies.

    The U. S. Department of Labor states does not regulate the number of hours an exempt employee needs to work. Typically, exempt employees are hired to get the job done regardless of the number of hours worked. Exempt employees are not paid overtime.

    In addition, an exempt employee can be required to use sick time if they have sick time available to use. If sick time is not available your employer can reduce any accrual for time off.

    Thank you for reading the Humanresourceblog.com

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