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Jan08

Hourly vs. Salaried non-exempt

What is the difference between an hourly employee and a salaried non-exempt employee?

Thanks

Thanks for an excellent question!

There are very few differences between an hourly and a non-exempt salaried employee. Basically, a non-exempt salaried employee is paid a weekly salary, rather than an hourly wage. This is usually done for the employers convenience, in figuring payroll.

For example, Kate has an insurance office that employs 4 people. The office is open 40 hours per week, and all the employees work those same 40 hours almost all the time. Rather than use timecards and tabulate payroll every week, it is easier for Kate just to put all 4 of the office workers on salary. They are each paid the same amount every week. Instead of paying the receptionist, Tina, $10 per hour, Kate pays her $400 for a 40-hour week.

However, because three of the four employees are non-exempt, they are entitled to overtime when they work more than 40 hours in any payroll week. In addition, if the employees work less than 40 hours in a payroll week, their salary can be adjusted accordingly. If Tina works 41 hours one week, she is entitled to one hour of overtime at $15 per hour. If she only works 39 hours one week, she is entitled to only $390 for the week.

By contrast, an exempt salaried employee is entitled to the same weekly salary, regardless of how many or how few hours the employee works in the week. (There are a few exceptions. You will find them if you search our archives for: exempt.) Kates office manager, Mark, is an exempt salaried employee earning $600 per week. When Mark works 31 hours per week spread over 5 days, he must be paid $600 per week. When he works 60 hours per week, he still earns $600 for that week.

Some unscrupulous employers try to avoid overtime by putting every employee on salary, but it does not work that way. Exempt or non-exempt status is determined by the employees primary job duties, not by how payroll is calculated. We just explained that a bit more throughly, a few questions ago. Look for the title exempt/non-exempt.

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118 Responses to “Hourly vs. Salaried non-exempt”

  1. rob adolfson Says:

    I am a tv cameraman for a major cable network. I am employed by a production company of about 40 employees. Of these 40 employees there are 7 about contractual on air talents. There are 3 cameraman. When i was hired I was told that I was salaried non exempt. This was due to the fact that my job is extremely physically demanding. I carry a 24+pound camera on my shoulder 8-12 hours a day on average. I need to know what the Tennessee law states about my status. Should I be salaried exempt or non exempt. They dont give me comp time officially and definitely NO OVERTIME. There are many occasions that we travel and work many weekends(12-15 hr each day). Is the employer required to comp time or overtime? So in recap do we need to be salaried exempt or non exempt due to the strenuous job activities that we perform each and everyday?

  2. Caitlin Says:

    Hi rob! This is a matter of federal, not Tennessee law. From your description of job duties, you are legitimately a non-exempt employee. That means you are entitled to overtime when you work more than 40 hours in the payroll period — even if you are normally paid a salary. Comp time is not lawful for private businesses. HTH, and thanks for reading the blogs!~Caitlin

  3. CATHY MCKENZIE Says:

    If a salary non exempt person misses work and they are out of personal days and vacation days can you dock their pay?

  4. Caitlin Says:

    Hi CATHY! Yes, an exempt or non-exempt employee can be docked under those circumstances, if they miss one full day of work or more. HTH, and thanks for reading the blogs!~ Caitlin

  5. Ginger Rausch Says:

    Can a salary exempt or salary non-exempt be docked for partial days when they are out of personal or vacation days?

  6. Caitlin Says:

    Hi Ginger! A non-exempt salaried employee can be docked for partial workdays missed. An exempt employee cannot. HTH, and thanks for reading the blogs!~ Caitlin

  7. Lou West Says:

    Question:
    On the earlier blog example with Kate and Tina, you mentioned Tina getting compensated $390 for 39 hours of work when she is Non-Exempt Salary. Based on a 40 hour workweek, I thought she must get paid $400 (or the equivilant of 40 hours of work) when she acquires less than the 40 hours of work? So, in this case, she receives this compentation (for 1 hour) out of her vacation time? This is what I am being told. Is that true?

  8. Caitlin Says:

    Hi Lou! No. Tina would be entitled to her full salary if she were an EXEMPT employee, but the question above refers to a NON-EXEMPT salaried employee. These are entirely different. (For one thing, under federal law an employee cannot be exempt unless he or she earns at least $455 per week.)A NON-EXEMPT salaried employee can be paid for 24 hours if she works 24 hours during the week. An EXEMPT employee must generally be paid for the entire week. HTH, and thanks for reading the blogs!~ Caitlin

  9. GM Says:

    I want to make sure I am understanding correctly. If I have a salary non-exempt employee & she is taking part of a day off, for personal reasons, can we make them take vac/sick time accrued. Also, if they do not have any accrued time left, can we dock them for that time. I thought if they were salary exempt or salary non-exempt that we could not dock their pay less that their 40 hrs.
    Thx

  10. Caitlin Says:

    Hi GM! Your understanding is mostly correct.

    A NON-EXEMPT salaried employee is basically an hourly employee. A non-exempt employee may usually be paid by salary to make it easier to figure payroll, but if the employee misses a few hours of work, her pay can be docked. If she works more than 40 hours per week, she is entitled to overtime.

    An EXEMPT employee must be paid his or her usual salary for the week. However, the federal FLSA does not prevent you from using the employees PTO, vacation or sick time as a portion of that pay. What is important is the amount on the paycheck, not how you tabulate it. An exempt employee who works any portion of the day is entitled to her full pay for the day, even if she has no sick time or PTO time left.

    For a more detailed answer, post a question, rather than a comment, and mention your state. HTH, and thanks for reading the blogs!~ Caitlin

  11. Jesus Says:

    Overtime for Salaried non-exempt employee. Can an NC employer pay overtime on this scale. Example: Employee has an guaranteed salary of 52k per year @ $1000 per wk @ 25 per hr calculated rate based on 40hrs per week. Then if the employee works 60hrs one week the formula for OT is calculated @ $1000/60hrs which cuts your rate down to $16.66.They then cut that rate by this formula &16.66x.5=$8.33. So for the 20hrs of OT you get paid $166. I thought OT for non-exempt was 1.5 over 40hrs.

  12. Caitlin Says:

    Hi Jesus! Under some circumstances, this may be legal under a Belo or fluctuatinng work week program. HTH, and thanks for reading the blogs!~Caitlin

  13. rose Says:

    I was hired as a salaried exempt employee in Oregon. I do not have any management responsibilities. Am I realy exempt? If not, can I request back overtime pay for all the extra hours I put in over the past two years? Thanks!

  14. Caitlin Says:

    Hi Rose! Many people believe that only managers can be exempt, but this is not true. There are five classes of employees who can be exempt under the federal FLSA: executives, outside salespeople, computer professionals, professionals and administrators. If you do not fall into one of those categories based on your primary duties, you are not an exempt employee and you can request back pay for overtime for the past 2 years. HTH, and thanks for reading the blogs!~Caitlin

  15. Cynthia Says:

    My job status at work is going to be changed from salaried exempt to salaried non-exempt (starting Jan 1st). I have been performing the same job for the past 10 years. Am I due the overtime for hours worked (over 40/week) for the past 10 years?

  16. Caitlin Says:

    Hi Cynthia! No, not necessarily. If you were correctly classified as an exempt employee, the employer can decide to permanently switch you to non-exempt status. They cannot continually switch you back and forth from one month to the next. The employer is handling this in an appropriate way by informing you well in advance of the change in status. HTH, and thanks for reading the blogs!~ Caitlin

  17. scott Says:

    can someone be considered salaried if they only work 3 days a week? more than one person in the office works less than 5 days a week and some have to fill out time cards and some do not. Is this appropriate?

  18. Caitlin Says:

    Hi! Under the federal FLSA, only employees with certain job duties can be exempt salaried employees. While it is legal in many cases for an exempt employee to be part-time, the best practice is for a part-time employee to be hourly. HTH, and thanks for reading the blogs!~ Caitlin

  19. Rachel Says:

    I am a salaried employee who has been working in an exempt position for almost 2 years, but it turns out that I am NOT in an exempt postion. My company just got cited in another state for this, so they are telling me now that as of Jan. 1 2011, I will no longer be exempt, which I should have never been in the first place. Can I collect back pay?? Also, when they were considering me exempt, if I were to take a few hours off, I had to use my PTO, am I understanding correctly that I should not have had to use that???

  20. Caitlin Says:

    Hi Rachel! Yes, you may very well be able to recover back pay for any hours of overtime you have worked in the past 2-3 years. First, tactfully approach the HR department and ask to be paid for the overtime. If they refuse, file a wage complaint with your state department of labor, or with the U.S. Department of Labor at http://www.dol.gov. Take action now — you only have a few months to file a complaint. It is illegal for an employer to retaliate against an employee who files a wage complaint in good faith.

    Your understanding about PTO or vacation time is not correct. In almost every state except California, an employer can require that an exempt employee use PTO when the employee is absent for part of a day. HTH, and thanks for reading the blogs!~ Caitlin

  21. Rachel Says:

    I live and work in Ohio. My position is classified by the company as salary non-exempt. They are only paying overtime at half time. Is this legal?

  22. Caitlin Says:

    Hi Rachel! This wage payment plan may be legal. Under the FLSA, there are two very specialized salary plans called the “fluctuating work week” and the “Belo plan.” Either would allow the employer to pay the employees weekly salary, plus 50% of the average hourly wage for overtime. Employees must agree to this wage plan in advance, in writing and some other limits apply. Consult the U.S. Department of Labor or an attorney specializing in employment law if you have doubts about this plan. HTH, and thanks for reading the blogs!~Caitlin

  23. Rachel Says:

    Can you elaborate on what a Belo or fluctuatinng work week program is, or what parameters have to be met for this to be the case.
    Thank you!

  24. Caitlin Says:

    Hi again Rachel! In very broad terms, the “Belo plan” or fluctuating work week is a payment plan where a non-exempt employee is paid a salary that covers all the hours the employee works in a week. Because the employee is non-exempt, he or she is entitled to additional pay when working over 40 hours per week. However, because the salary covers straight time for all hours worked, the employee is entitled only to an overtime premium of 50% the average hourly rate. Often under these plans, the more hours the employee works, the less they earn per hour.
    There are some limits to the fluctuating work week. Generally it applies only if there are some weeks when the employee works less than 40 hours. The employee must agree in advance, in writing. The employee must be paid at least the state minimum wage for hours worked, including overtime. Some employers use this payment plan for commissioned salespeople, or for retail managers. Perhaps the most legitimate use is for employees in seasonal industries, such as landscaping or golf courses. The U.S. Supreme Court has appoved these plans in certain circumstances. However, some states have prohibited these wage payment plans. Again, this is a very specialized area of employment law and it would be better to consult an expert. HTH, and thanks for reading the blogs!~ Caitlin

  25. Rickie Says:

    I am salaried non-exempt in North Carolina. I was out one day due to inclement weather. The company did not close down due to the weather, but I was unable to go. Can they dock my pay for that one day?

  26. Caitlin Says:

    Hi Rickie! Yes, the employer can dock your pay when you are unavailable to work for an entire day. This would be true, even if you were an exempt employee. Non-exempt employees are entitled to payment only for the time they work. HTH, and thanks for reading the blogs!~ Caitlin

  27. paul Says:

    I am trying to make sure I am covered under FLSA as an employer. I have several non exempt inside sales people in a wholesale distribution business. Each employee works approximately 50 hours a week and is compensated very well for the part of the country in which we live. Each employee agreed to those hours when hired, as well as agreed to the compensation which they receive. Each employee has an opportunity to earn commission after the commission rate times sales equals more than the agreed upon guaranteed sum. If I am reading everything correctly, I could possibly be liable for overtime backpay if an employee wanted to make an issue of it because I never established a base rate of pay. Would the following compensation agreement eliminate my exposure to back overtime pay going forward:

    Non exempt sales personnel will be paid the higher of the following:
    (1) their hourly pay of $7.25 per hour with overtime paid at a wage of $10.88 per hour pursuant to the FLSA if they work more than 40 hours in a week or
    (2) a guaranteed rate of $800 per week or
    (3) a commission equal to 3.4% of sales that top $10,000 increments (ie .034 * 10,000 or .034 * 20,000 or .034 * 30,000, etc.) minus 3.4% of returns.

    Does the fact that I guarantee a certain rate per week complicate things and if so, how?

  28. Caitlin Says:

    Hi paul! Your payment arrangement does not complicate things. It is illegal under the FLSA.
    Because your employees sell items across state lines, they are covered by the federal FLSA. That law requires that a nonexempt employee be paid overtime after 40 hours. Even if the employee wanted to give up the right to overtime and agree to a straight salary or another payment arrangement, it is not legal for them to do so.
    The employer does not establish the regular rate for overtime simply by saying “you make $7.25 per hour.” The rate the employee is actually paid for the first 40 hours in each payroll week is the base rate for overtime. Often, this includes bonuses or commissions. Example: Tina earns $20 per hour working 50 hours this week. Her base rate is $20, so she must be paid an overtime premium of $10 per hour (half of $20 per hour) for 10 hours, or an extra $100. Next week, she earns $15 per hour (in wages plus commission) in 45 hours. Tina is entitled to an overtime premium of $7.50 per hour for 5 hours next week.
    Paying a nonexempt employee a salary of $800 per week does not eliminate the need for overtime. If Tina earns $800 in 50 hours this week, she averages $16 per hour. She is entitled to an overtime premium of an additional $8 per hour for 10 hours = $80.
    It is also problematic for the employees payment plan to vary from week to week. You need to establish one payment plan and stick to it. Otherwise, this looks like a conspiracy to avoid paying overtime.
    The only way we see to address this issue is to pay your employees overtime based on their average rate each week. You should consult an attorney specializing in employment law before you continue this payment plan. HTH, and thanks for reading the blogs!~ Caitlin

  29. karen Says:

    A company shuts down due to severe weather. Required all employees both union and mgmt (exempt/non-exempt) to sign a paper deciding if they wanted to use PTO or take the day without pay. If the company was shut down due to weather can they deduct that days pay from a salary non-exempt and/or salary exempt emnployee.

  30. Caitlin Says:

    Hi karen! The company is not required to pay hourly or non-exempt salaried employees. However, exempt employees should have been paid for the day. They can be required to use PTO for that time if they have it available, but even if they do not the exempt employees should have been paid. HTH, and thanks for reading the blogs!~ Caitlin

  31. Bette Says:

    Can a non-exempt salaried employee have his or her pay reduced due to lack of work performance. Specifically, if there is paperwork that must be turned in by specific date and it is not, can they have money deducted from that periods pay check as long as for the day minimum wage is paid?

  32. Caitlin Says:

    Hi Bette! You do not say which state you are in, but generally speaking an employer cannot fine an employee or deduct wages for poor performance. An employer can issue a written reprimand or terminate an employee for poor performance. However, in nearly every state, the employer must pay the worker the wages that were agreed upon. The employer cannot retroactively reduce the employees rate of pay after the work is performed. The employee must be informed that he is being paid only the minimum wage, before the work is performed. HTH, and thanks for reading the blogs!~ Caitlin

  33. Bette Says:

    Caitlin, We are in Wisconsin, and it is stated in the job description that paperwork is due by specific date/time or work will be paid at minimum wage. Can they not do that? thanks.

  34. Caitlin Says:

    Hi Bette! This is a highly questionable practice. It may be legal, but we would like to see an opinion letter from the Wisconsin Department of Workforce Development on it. The problem is that the employee believes when the work is being performed that it is at one rate, when in reality he is being paid a lower rate. The problem is the word “if”. If the employee were being paid the minimum wage all the time, that would be fine.
    If you are the employee, our recommendation is that you file a wage complaint with that agency, and let them investigate. It is illegal for an employer to retaliate against an employee who files a wage complaint in good faith. HTH, and thanks for reading the blogs!~ Caitlin

  35. Jill Wilcox Says:

    Have you ever heard of a company that allows non-exempt employees to take their paid time off in as little as one hour increments, but will not allow exempt employees to take time in less than a half-day increment?

  36. Caitlin Says:

    Hi Jill! Well, such a leave policy is unusual, but it is lawful. An employer can have one set of policies for exempt employees and a different set for non-exempt employees. HTH, and thanks for reading the blogs!~ Caitlin

  37. Vanessa Says:

    This is a great post – and interesting questions – thank you.

    Does this scenario work?
    The nonexempt salaried employee works 9am-5pm. They take a 1/2 hour (unpaid?) lunch. They are at a salary of $30,000/year. Will their salary be affected by whether their standard schedule requires them to work 9-5 or 9-5:30, if both have a 1/2 hour unpaid lunch? (Could you please also confirm the lunch is unpaid?)

    Or is it customary to have that individual work a schedule that brings them to eight hours worked each day? If so, why?

    Thanks for your help!

  38. Caitlin Says:

    Hi Vanessa! A nonexempt employee is basically an hourly employee. An employee who is relieved of all duties during lunch need not be paid for that time. (In a few states like California, lunch must be paid unless the employee can leave the premises.)

    The employer can establish the expected work week for any employee. It may be 40 hours, 37.5 hours, 35 hours or another number of hours. This is entirely up tot he employer.

    An employee who works 9 am to 5 pm with a 30-minute unpaid lunch has worked 7.5 hours. If the employee does this 5 days per week, she has worked 37.5 hours. Some employers would consider this a full work week. Others would consider that the employee would have to work 40 hours to earn her full salary. In that case, the employee would need to work 9 am to 5:30 pm, five days per week, to earn the full $30,000 per year.

    We are unable to answer the rest of your question, because it depends upon the employers expectations. Some employers would pay a nonexempt employee $30,000 for a 37.5-hour week, others would require a 40-hour work week for that same rate.

    If the employer expects the employee to put in 40 hours per week, her wages can be reduced for any week in which she works less. This is a comlex issue, so feel free to post additional questions. HTH, and thanks for reading the blogs!~ Caitlin

  39. Tee Says:

    I am a teacher at a private Elementary School in Louisiana. I am paid a monthly salary and am given 10 sick days per school year. I am obligated to work 7am-3pm. If I leave work at 2:30pm for a doctors appointment or illness, is it lawful for my my employer deduct 4 hours of sick leave form me? What about leaving early or coming in late to take a sick child to the doctor? Also, once my sick time is used, can they deduct my pay for missing a partial day due to illness?

    Thanks.

    –great site!

  40. Caitlin Says:

    Hi Tee! Thanks for the kind words! There is no law that requires an employer to give paid sick leave to workers. If the employer chooses to provide this benefit, generally speaking the employer can determine the policies regarding it.

    The employer can require that sick leave be used in 4-hour segments. If you take off 30 minutes early for a doctors appointment, the employer can deduct 4 hours of sick leave.

    Many employers would not allow an employee to use sick leave when a child is sick, at all. That policy is lawful in all but a few states.

    Part of the answer to your questions will depend upon whether you are an exempt or a non-exempt employee.Once you have exhausted all sick leave, if you are non-exempt, any additional absence could be unpaid. If you are exemt, and you work a portion of the day, you are entitled to payment for the full day. Either way, you could also be disciplined or terminated for missing the time from work.(Another way to say this is that there is no law that requires the employer to let you leave early for a doctors appointment.)

    Most schools are covered under the federal FMLA, so if you or your child has a serious health condition, you may be entitled to unpaid time off for those doctors appointments. However, FMLA does not cover routine doctors visits. HTH, and thanks for reading the blogs!~ Caitlin

  41. Amy Says:

    My mother works in Texas in the MHMR field. She is a Supervisor overa workshop for the challenged. Her company restructured recently and changed her to salary non-exempt and her hours there are from 7:30am to 4:30 pm. She also has to drive clients in and take them home before and after her regular shift. She was also told she could not be in her office doing paperwork during the day she has to come back in the evening and do her paperwork. This pay period she will have 106 hours but is only getting paid for 86. She is also being told she will have to cover shifts at some live-in homes if the supervisors cannot find coverage. She was told they would her some flex time if possible. First question is, do they have to pay her overtime? Next, can they make her work elsewhere if she is over the workshop? She has a supervisor over her and was told he is her boss but so are two other people. She has to do work he tells plus what the other two tell her? Is this legal to do to her? I greatly appreciate you reponse. Thanks

  42. Caitlin Says:

    Hi Amy! If your mom is an exempt salaried employee, that means she is never entitled to overtime, no matter how many hours she works. Some exempt employees work 70 hours per week or more. However, not everyone qualifies to be an exempt employee, under federal and state laws.

    If your mom is a non-exempt salaried employee, that means she is entitled to overtime when she works more than 40 hours in the payroll week. She also must be paid for all the time she works, so if she works 106 hours in the payroll period she is entitled to payment for 106 hours. Driving clients around is work and your mother must be paid for that time, if she is non-exempt.

    There is no legal limit to an employees duties, or to the number of bosses she can have. It is lawful for the employer to give your mother additional responsibilities, and for her to answer to 3 different people. This is not an ideal work situation, but it is fairly common.

    In some cases different rules apply to employees of state or city government agencies. Contact the TWC or Texas Workforce Commission at http://www.twc.gov for more info on this, or to file a wage complaint for unpaid overtime. HTH, and thanks for reading the blogs!~ Caitlin

  43. Mary Says:

    I work as general manager in the fast food industry in New York. I take care of day to day operations. I am required to work a 50 hour work week. I am listed as a non exempt employee. Is this correct? Secondly if I work 65 hours this week will I be paid over time? If I open my location and then have to leave due to illness should I be paid for the full day or will I be charged for partical time?

    Thanks

  44. Caitlin Says:

    Hi Mary! We think perhaps you have misunderstood. Usually restaurant general managers are exempt employees who are paid the same salary every week. An exempt employee is paid the same when she works 65 hours in the week as when she works 40 or 50 hours in the payroll week.

    If you were a non-exempt employee, you would be entitled to overtime when you work more than 40 hours in the payroll week, under federal law.

    An exempt employee who works any portion of the day must usually be paid her full salary for the day. She can be required to use vacation pay or sick leave, but must be paid her usual salary. HTH, and thanks for reading the blogs!~ Caitlin

  45. Shirley Says:

    In January, 2005 our agency was sold. I am a non-exempt employee – Bookkeeper. The new owners hired me at my current salary working 4 days a week 7.5 hours/day. Six weeks later they told me I would be working 4 days a week 7.5 hours/day every other week and 5 days a week 7.5 hours/day the rest of the time at the same current salary. 5 years later the told me I would be working 5 days a week 7.5 hours/day at the same current salary. In essence I worked 195 hours for the first five years with the exception of the first year and now am working 390 more hours/year with no additional pay (working at the same salary as I was hired at. ) Is this legal?? Am I entitled to back pay? Thanks – love your blog.

  46. Caitlin Says:

    Hi Shirley! It sounds like the employer is treating you as an exempt salaried employee.

    But you are still not entitled to back wages. An employer can change the salary or work hours of any employee, as long as the employee is told in advance. If you were working 35 hours per week, the employer could tell you that you would be required to work 40 hours per week for the same salary. This is essentially a reduction in wages — which is completely legal.

    When the employer changes the working conditions, and the employee continues to work, she has accepted the new arrangement.

    You are not alone. In the past 3 years, the average salaried employee has had a 25% wage reduction, an increase in hours or a combination.

    If you are truly a non-exempt employee, you are entitled to overtime when you work more than 40 hours in the payroll week. HTH, and thanks for reading the blogs!~ Caitlin

  47. Karen Chilcote Says:

    A Missouri salaried non-exempt employee has been asked to travel out of state to set up and attend a company sponsored conference. Travel time will be on Saturday after a 40 hour work week. Is the travel time to/at/from airport paid time? If so, is it straight time or time-and one-half?

  48. Caitlin Says:

    Hi Karen! Any travel that occurs during the hours of the employees normal work day must be paid. This includes travel to and from the airport, to and from a hotel, and checking into the hotel.

    This is true even if the employee is normally off on Saturday. Example: Trina normally works 7 am to 3 pm, Monday through Friday. Trina must be paid for any travel that occurs between 7 am and 3 pm, even on Saturday or Sunday (her normal days off.)

    In addition, the employee must be paid for any work performed, regardless of the time. Driving is work, so if the employee drives to the airport, she is entitled to payment for that time — even if it is outside her normal work hours. Meetings and mandatory meals with clients or coworkers are also paid work time.

    The employee must still be paid overtime if she works more than 40 hours in the payroll week. Both travel and onsite work count toward overtime.

    Check out the answer to the question posted on 4/12/11 for more details. The same federal regulations apply to both domestic and international travel, under the federal FLSA. HTH, and thanks for reading the blogs!~ Caitlin

  49. Eben Elias Says:

    I am a salaried employee , I am trying to figure out if that means I get paid 600 a week for 52 weeks, I am a Pastry Chef and I work for a resort that is open from April thru Columbus Day in Massachusetts. I was under the impression salaries were year round and I was to be paid 600 a week every week for the entire year. If not and I am only paid for the time the resort is open I technically make less than the federal $455 a week (26k or so a year) which would mean I am not an exempt employee regardless of duties and should be paid overtime in excess of 40hrs a week? I am very confused. No where can I find a definition stating what salary actually means. It means a set weekly pay rate, but is that a yearly guarantee or not?

  50. Caitlin Says:

    Hi Eben! No, there is no minimum yearly rate for salaried exempt employees. The federal FLSA requires that a salaried employee earn at least $455 per week. $600 is more than $455 per week, therefore you meet the salary requirements to be exempt. There is not even any mention of annual wages in the FLSA or its regulations — the requirement is $455 per week.
    If the employer had to pay you the same salary every week whether you worked or not, they would have to pay you a weekly salary for the rest of your life. That is not how employment works in the US. There is no law that an exempt employee must be employed 52 weeks per year.
    In order to be exempt, your primary duties also must meet the qualifications of the FLSA.
    An exempt employee must be paid the same salary every week he works. There is no requirement for the employee to be paid the salary for any payroll week in which he does no work at all. So if you are laid off duirng the winter,you will qualify for unemployment, but you are not entitled to any salary.HTH, and thanks for reading the blogs!~ Caitlin
    Read more about this at:http://www.dol.gov/whd/regs/compliance/fairpay/fs17g_salary.pdf

  51. Tim (Seattle) Says:

    I have an employee who is non exempt. I pay him a salary for 25 hours of work each week – $250. If 1 week he worked 30 hours, would I be required to pay him for those 30 hours ($300) or only the 25 that I salary him for?

    If he worked 45 hours would I pay him his 25 hr salary ($250) + time and a half for the 5 hrs of OT?

    Thanks

  52. Caitlin Says:

    Hi Tim! The answers to your questions are yes, and no.

    A non-exempt employee is basically an hourly employee. You pay him a salary because it is more convenient for you to process payroll. However, under federal law, he is still entitled to overtime when he works more than 40 hours in the payroll week.

    In addition, it would be unlawful for you to pay this worker a salary that worked out to less than the minimum wage for hours worked — plus overtime, if applicable.

    If he works 30 hours in the payroll week, you must usually pay him $300. If he worked 40 hours in the payroll week, and you paid him only $250 per hour, that would be about $6.25 per hour — far less than the Washington minimum wage. If he works more than 40 hours per week, he is entitled to overtime at 1.5 times his average hourly rate for that payroll period.

    If this employees hours fluctuate, it would make much more sense just to pay him $10 per hour or the minimum wage on an hourly basis, plus overtime.

    Someone who makes a salary of $250 per week can never be exempt, regardless of his job duties, because the minimum salary requirement for an exempt employee is $455 per week, every week. If you are in Washington state, the minimum wage and wage payment restrictions are even more severe.

    A few slick lawyers will tell you that it is possible to finagle the wage laws and pay the non-exempt employee just his usual salary, plus overtime. However, this assumes that the non-exempt employee is being paid a salary that is more than 40 times the minimum wage. Even when this is the case, we do not suggest that you try to “bend” this law. The risk is just too great. HTH, and thanks for reading the blogs!~ Caitlin

  53. Teresa Says:

    For full-time non-exempt salaried staff I notice you say that a having a salaried vs. hourly employee “is easier for the employer for payroll purposes”. Must we keep timecards/timesheets for each of those non-exempt salaried employees? If we do not, how else would we know if they were working overtime? We pay semi-monthly 86.67 hours. If they worked under 86.67 (say 83 hours) we can use 3.67 of their personal, sick or vacation (as applicable) to get them up to 86.67 hours, OR we can pay them 83 hours is that correct? BUT if in their designated 7 day period they worked 43 hours – we would own them 3 hours of overtime, is this correct?
    Thank you for clairification.

  54. Caitlin Says:

    Hi Teresa! You are correct. Paying non-exempt emplyees by salary is easier only when the employees always work the same number of hours, say 37.5 or 40 hours per week. If the employees actual hours worked vary from week to week, it is actually easier for the employer to pay them hourly.

    You are correct that federal law requires employers to keep accurate records of hours and times worked by all non-exempt employees — even non-exempt salaried employees. So yes, they must punch a clock and yes, if they work more than 40 hours in the PAYROLL WEEK (not more than 80 hours in the payroll period) they must be paid overtime.

    The employer can prorate the non-exempt employees wages based upon number of hours worked, if the employee works fewer hours than his/her normal schedule. You can require that any employee use PTO, sick leave or paid vacation to cover any absence.

    Since you pay semi-monthly, also be aware that overtime is calculated based upon the PAYROLL WEEK, not the payroll period. A 15-day payperiod will include portions of 3 payroll weeks, and non-exempt employees must be paid overtime if they exceed 40 hours in any of those payroll weeks — even if their total for the payroll period is less than the expected 86.67 hours.

    Good computerized time clock software will do these calculations for you. HTH, and thanks for reading the blogs!~ Caitlin

  55. Renee Says:

    We have three inside sales employees working for a wholesale distribution company. They are classed as exempt, make over minimum wage (each are paid salary), have bonus potential based on sales incentive program, and travel approx. 30 days per year to trade shows. They do not supervise nor have any management duties. Their main responsibility is to generate new and repeat sales by calling customers. Are they classed correctly?

    By the way, great site! Appreciate all the info!!

  56. Caitlin Says:

    Hi Renee! Thanks for the kind words! When in doubt it is always better to pay employees as nonexempt, rather than exempt.

    Check out the info on exemptions for Outside Sales and Administrative exemptions below. As far as we can tell, your inside sales people do not fall into either category. HTH, and thanks for reading the blogs!~Caitlin

    http://www.dol.gov/whd/fact-sheets-index.htm

  57. Duey Miller Says:

    This is wrong about the over time for Salary non exempt. You do not get 1.5 time your hourly wage but .5 (half time)
    ~If Tina works 41 hours one week, she is entitled to one hour of overtime at $15 per hour. ~

    WRONG: Tina gets only 5 dollars for her over time. but can get more if the employer wants to.

    I know because I worked it and got pay stubs that marked over time as such. But the employer would pay time and half for unscheduled over time. Time where you where asked to come in. They did not have to but did. That because of the 3days on 3 days off 4 days on 4 days off with 12hours shifts. Those 4 days where I worked a 48 hour week I only got 4 hours of pay. Very sneaky.

  58. Caitlin Says:

    Hi Duey! We are aware that some slick accountants have convinced a few employers that non-exempt salaried employees can be paid just the 50% premium for overtime — and that may be lawful if the employee has specifically signed an agreement to a Belo plan or a similar arrangement. However, that arrangement for other non-exempt employees has not been upheld by the U.S. Department of Labor. We suspect that eventually these employers will be faced with a lawsuit. This is not an HR practice we can recommend to our readers.

    The fact that your previous employer paid you time-and-a-half sometimes, indicates that they realized they owed it to you. HTH, and thanks for reading the blogs!~Caitlin

  59. karen Says:

    Are exempt staff required to work or account for 37.5 hours (our normal work week)that is regular time or PTO adding up to 37.5?

    Can we require exempt employees to be on-site for a minimum number of hours to coincide with the working hours of their staff?

    Thank you. Karen

  60. Caitlin Says:

    Hi again Karen! No, if the exempt employee checks email or takes phone calls from work, you do not have to count that as a “full day” of work in terms of attendance and performance. Suppose employee Jon works 1 hour from home on Friday, checking his email. You can dock Jon for 7 hours of PTO for that day. You can also discipline or terminate him for not working the expected hours.

    However, you do have to pay the exempt employee for that day. Under the federal FLSA, an exempt employee who works any time at all during the day, even 5 minutes checking email from home, must be paid his or her usual salary for the day.

    Under the FairPay regulations, payment for the day and performance are two separate issues. There are some exceptions, as when an exempt employee takes FMLA or unpaid time off under ADA, but they probably do not apply in this case. This is a complex issue, so feel free to post more questions in comments. HTH, and thanks for reading the blogs!~Caitlin

  61. karen Says:

    And one more please. If an exempt employee has not come in to the office but has answered phone calls or emails, does that count as a full day of work?

    Karen

  62. Caitlin Says:

    Hi Karen! The answers to your first two questions are yes and yes. This is a performance issue. Under the federal FairPay regulations issued by the US Department of Labor, an employer can establish minimum working hours for an exempt employee. This includes the total number of hours and the time of day. You could require that exempt employees work 37.5 hours per week or even 40,50 or 60 hours every week to meet your expectations. You have the right to discipline or terminate any exempt employee who fails to do so.

    You can also specify the specific minimum hours the exempt employee is to work — such as 8 am to 5 pm, or 7 am to 7 pm. Again, you can discipline or terminate any exempt employee who fails to do so.

    You can automatically use PTO hours to compenate if the exempt employee fails to work the expected hours. For example, if the employee works 35 hours rather than the expected 37.5 in a week, you can deduct 2.5 hours of PTO from his or her balance to make up the difference. In fact, one of the purposes of PTO is to limit the amount of time off that employees can take without consequences.

    However, be aware that in most cases, unless the exempt employee misses a full day of work, you must still pay his or her full salary for the week. So you can discipline or terminate the employee, but unless he misses one or more days of work, he is entitled to his full salary under the FLSA. HTH, and thanks for reading the blogs!~ Caitlin

  63. Eben L. Elias Says:

    Caitlin,
    I had written earlier this summer about my job as a pastry chef, I asked some silly question about salary being a yearly requierment or some nonsense. However after doing a lot of research, as well as going over the changes made in 2004 to the FLSA requirements for exemption concerning chefs and other hospitality employees. I went to a lawer for a consultation but I was lacking several documents including my pay agreement which I signed upon hiring and I wanted to give my employer the chance to consider paying the back pay I am owed on their own once I brought it too their attention.
    This was mid June when I approached them, this is what they are telling me – rather wrote me on paper. First off they say that my position is exempt. I am sure it is not, I am a pastry chef by title, but I am not an administrator, I do not have a four year degree , it is not a five star resort, and I have no cooks working directly under me whom I am supposed to manage. I spend my days making . for the most part the same things over and over again. I bake muffins, I make ice creams, breads, crackers, etc and being I am the only person in the “department” I was working 60-70 hours a week up until June when they gave me two days off, even with those two days off I work 9-10 hours a day and have never once had a lunch break; as I understand it that means they owe me an hour for every day I worked and did not receive a lunch break, so I am still logging 45+ hours a week.

    Now about my position, as I understand it, I do not fall under any of the FLSA test for exemption, the mere fact that the GM and the Exec Chef are talking to me tells me this is a correct assessment. When I took the job I was under the impression that I was getting paid a 600 dollar a week salary; any normal person would then assume that equates to$15 dollars an hour, with overtime at 22.50 and hour. My pay agreement, signed by the chef, the GM and I only says that I “Eben….Elias” is to be paid a salary of $600 dollars a week. That is it, it says nothing about how many hours I must work, again I am left to assume that its 40 hours a week.

    That is the background now here is the question. I was told not to clock in or out, I am the only one with records showing when I was there and when I left, From April 14 Through today I have worked 225 hours overtime (that does not include an hour for every day I had no lunch break which is all of them) However once we finally sat down at a table and talked about it they claim that I am expected to work 45 hours being on salary – however I was never told this upon hiring or I would not have taken the job. I was making more than 12 something at my previous job and had a third of the work load; not only that but it says nothing about hours on any of the paper work I signed I have no contract stating that I must work a min of 45 hours, can they just decide this without me accepting or agreeing to it? I took the job for a pay raise and hopefully to get treated more fairly than the other restaurants. (where I work, marthas vineyard, they all try to say there i no over time or holiday pay etc).

    They then told me that I had a verbal agreement with the sous chef who hired me that I agreed that I would have to work “six days a week ten hour days come july and august, it gets crazy here” and I said “yes I know, this is my fourth summer working on the island I know how busy it gets” again even if this is legal, I agreed to work six days ten hours a day but not for 600 dollars a week and not in April, May or June.

    There is no job description for my position, I do not over see anyone, I did not sign anything saying I have to work over 40 hours to get my salary of 600 dollars a week, I do not fall into learned or creative professional because I have no four year degree, I produce the desserts they tell me too and its not a five star establishment.

    I am pretty sure they owe me back overtime from when i started to today and going forward, as well as payment for the 60+ lunches I never have taken. They are trying to get me to settle for 1600 dollars (OT from April and May) calculated with my base pay being divided by 45 hours.

    To be clear, when I was hired I was told I was being paid 600 a week, there was no mention of over fort hours a week being expected, there was no job description I just do what the chef tells me, I was told id have an assistant but I never got one, and I am consistently working over time despite them giving me two days off instead of just one. The mere fact they are trying to get me to settle with the for some small number and for only 5 weeks of OT tells me I am correct and they owe me a lot more, but I would appreciate your take and should I go to a lawyer, I found one here who will write a letter demanding the OT for $500 dollars – which is a lot faster than waiting for the labor board.

    -Eben L Ellias

  64. Caitlin Says:

    Hi Eben!

    Okay, a couple of things. The fact that they are offering you a settlement means that they know that you are a non-exempt employee. They are low-balling by offering you a ridiculously low amount.

    You need to go to the US DOL or an attorney who specializes in employment law. You can find one through the NELA at http://www.nela.org, or use the DOL. Frankly, employers are a lot more intimidated by the DOL and its free for you to use. You also have more protection against retaliation or blackballing if you file a complaint with a state or federal agency, as opposed to going through a lawyer. You can pay this attorney $500 to write a letter, but what happens if you have to sue them? You will pay him thousands more.

    We are not impressed by your current attorney. He is treating this as if it is a matter of contract law, and unless you are in California, it is not. It does not matter what contract you signed when hired — a non-exempt employee cannot waive or sign away the right to overtime. Period. Even if you agreed to work 100 hours per week for $600, if you do not meet the US DOL guidelines for an exempt employee, the agreement is not lawful and not binding.

    Usually a Sous Chef is an exempt Executive because he supervises the equivilant of 2 or more full-time employees such as dishwashers or pantry cooks. If you were in charge of the kitchen on the Executive Chefs day off, you would probably be exempt. But if you never supervise anyone, you are non-exempt and entitled to overtime when you work more than 40 hours per week.

    There is no presumption that an exempt salaried employee is being paid for only 40 hours. The employer establishes the work week. They can expect you to work 45, 50 or 100 hours per week for your salary. Even if they expected you to work 40 hours per week when hired, they could unilaterally change it to 100 hours per week the next month, and there is nothing you could do about it. So your assumption about a 40-hour workweek was naieve. But you are not an exempt employee, so no matter how many hours per week you are expected to work, you are entitled to overtime at time-and-a-half after 40 hours.

    The work week is different from overtime. Under the federal FLSA, a non-exempt employee must be paid overtime after 40 hours. Not after his “normal” work week.

    Some employers try to dink with a non-exempt salaried status, paying you only half your usual rate for overtime, but that is dubious as well.

    There is no concern about only you having your time sheets. In fact, that is a good thing. The FLSA requires that employers keep accurate records of all hours worked by non-exempt employees. If the employer has no records, the DOL will assume that your written records are right. You do not have to prove that they are correct. If they are the only records, the employer has to “prove” that they are incorrect. Again, your attorney seems to not know this.

    The bottom line is that you are better off with the US or state DOL than with an attorney who does not specialize in employment law. You can always file a wage complaint at http://www.dol.gov and hire an attorney later. You cannot do it the other way around. If an attorney has already filed a suit, the DOL will no longer accept your complaint. If the DOL cannot help you for some reason, they will refer you to an attorney who specializes in employment law.

    You have a limited amount of time to file a wage claim — usually 18 months. One of the things this employer is trying to do is string you along until that window of opportunity expires. Our advice: either file a wage complaint today, or go with an attorney recommended by the DOL, or with an attorney from NELA. But do it within 3 to 4 weeks, if not sooner. HTH, and thanks for reading the blogs!~ Caitlin

  65. cba Says:

    When must Overtime be paid out after an employee works more than 40 hrs/wk? Is it required to be paid in the same paycheck that covers that pay period that it is earned? Or can a company make the employee wait for OT to be paid out once per month(in the following month)?
    Also, do you have official documentation (FLSA) that states this?
    Thanks

  66. Caitlin Says:

    Hi cba! The FLSA does not directly address this issue, it merely states that employees must be paid on a timely basis, and that employees must be paid for all time worked. It is possible that if you paid employees straight time for all hours worked in the payroll period, and held the overtime premium until later, the US DOL might not prosecute the case. However, the best practice in HR is to pay all wages owed on payday. In addition, several states have overtime or wage payment laws that require this. HTH,and thanks for reading the blogs!~ Caitlin

  67. Jules B Says:

    I am a salary non exempt emploee. The company does not lhave a certain numbers of sick days. If I am sick I get paid for it. I have not set number of sick days. But if I have a docs appt or for some other reason I am even 10 or 15 minutes late I am told I have to make it up within the same week it occurs. Can the employee require me to make it up

  68. Caitlin Says:

    Hi Jules! Yes. As a non-exempt employee, you are basically an hourly worker. The employer can require that you make up time during the same payroll week. There is actually no requirement that they pay you for sick days — they could simply pay you for the hours you work that week. So the employer is actually being very generous.

    If you have a serious health condition, you may be entitled to time off for medical appointments under FMLA. However, FMLA time is unpaid. HTH, and thanks for reading the blogs!~ Caitlin

  69. Aaron Says:

    Hi! I have been doing my research and have come to the conclusion that I am actually a non-exempt employee, I have been with the company for a little over two years and have been paid and have worked as an exempt employee. A little over a year ago I brought it to attention to our Operations Manager that I was sure I was an non exempt employee because of my job duties and not my title, I was told he would look into and then blown off, this Ops Manager no longer works here.

    My duties do not fall under of the requirements to be exempt and now I have the back up to bring to their attention, how should I go about doing this with them?

    I am also quite concerned about retaliation or harassment when bringing this to their attention.

    I understand I can collect back pay for up to 2-3 years depending whether this was malicious or not by the company.

    We are a small company with no HR department and I am really unsure how to go about bringing this serious issue to the Controller and President.

    Thanks for the help.

  70. Caitlin Says:

    Hi Aaron! You are correct to be concerned about retalition. Unfortunately, you actually have greater protection if you file the complaint with the US Department of Labor, rather than go directly to the employer. However, discussing it with the employer is usually the best way to start the process.

    Our suggestion is that you raise this issue in writing, so you can document it. Send a certified letter to the employer detailing the evidence that you are not an exempt employee. Keep a receipt and a copy of the letter.

    You may want to verbally mention the letter to them, either before or after it arrives.

    Your attitude should be friendly and respectful throughout this process. Present it as you are simply bringing a matter to their attention, that you are sure they will want to rectify.

    If the employer does harass you, that is illegal retaliation and you should immediately file a complaint with the US Department of Labor at http://www.dol.gov. If they do not harass you but also do not pay you overtime, you can also file a complaint with the DOL.

    In the letter, you might use language similar to this:

    “I wanted to contact you in writing to prevent any misunderstanding. Please consider this letter an official complaint under the FLSA, the federal Fair Labor Standards Act. I beleive I have been misclassified as an exempt salaried employee, and am owed back wages for overtime since my hire date.

    “I believe I am not exempt because…”

    “I previously raised this issue with [former supervisors name] in [month, year] and he told me it would be addressed. I never heard anything more about the issue.

    “As you know, it is unlawful to retaliate against or harass an employee for filing a complaint under the FLSA. I am sure that you will wish to resolve this problem quickly and amicably.”

    If your employer was totally unreasonable and you were sure they would retaliate, we would suggest that you go directly to the DOL.

    HTH, and thanks for reading the blogs!~ Caitlin

  71. Aaron Says:

    Thank you Caitlin,

    I sent them a letter and they have said they will not pay for any back pay because it was never authorized, yet all the overtime I have worked was asked of me by the President, many instances were situations where he had asked me to take out clients after work for a dinner because he had no time to do it, I never kept track of time or all the times this happened because at the time I thought I was an exempt employee. Other times were times on the clock, I have given this employer so much of my time and overtime, and now I feel like they are really doing me wrong, the Controller acted like I was out of my mind asking for back pay, her first reaction was “Well, I never get paid for my overtime why should you”

    Obviously, this has been a stressful situation, no one has ever questioned my overtime in the past until I bring it up now and how I have been misclassified and would like back pay.

    What should I do next, I feel like I have lost and now have a bullseye on my back.

    Thanks,
    Aaron

  72. Caitlin Says:

    Hi Aaron! You should immediately file a complaint regarding unpaid overtime with the US Department of Labor. You can find your nearest DOL office at http://www.dol.gov.They will investigate, and if they find the employer owes you back pay, they will force the employer to pay it.

    Do this right away, because you have additional protection against retaliation when you have filed a complaint with a federal agency. Even if it turns out you are not owed any back wages, you are protected from retaliation under the law. If you do experience any retaliation, you should file a separate complaint about that with the same agency.

    The employer has a legal responsibility to keep accurate payroll records of all the hours you worked, and the US DOL has the right to inspect those records. You should sit down now and try to list the dates and times you took clients out to dinner etc. In many cases, if the employer has no records, the DOL will accept your records.

    Occasionally if the US DOL does not have sufficient staff to investigate, they will refer you directly to an attorney who can sue the employer on your behalf. Normally, as soon as the employer is contacted by the US DOL or an attorney, they pay the overtime owed.

    Do not tell your employer you intend to file this complaint — just do it. We are happy to answer any additional questions you may have. HTH, and thanks for reading the blogs!~ Caitlin

  73. Audrey Says:

    Question: I am a purchasing agent (6 yrs, along with 2 other purchasing agents(5 yrs) in our department. I have been getting paid hourly wages, the other 2 agents are being paid salary. Is this legal?
    Thank you

  74. Caitlin Says:

    Hi Audrey! It may be legal, depending upon the circumstances. If you are part-time, or use FMLA or take time off under ADA, then the employer can pay you on an hourly basis. However, if all 3 purchasing agents are full-time and have similar duties, it may be illegal discrimination for you to be paid hourly while they are on salary. This is particularly true if you are the only female agent, or the only purchasing agent of your race, color, religion or national ancestry. HTH, and thanks for reading the blogs!~ Caitlin

  75. Audrey Says:

    Thanks Caitlin. We are all full-time and do the same work. I am also the first and only woman to hold this position at our company.

  76. Caitlin Says:

    Hi Audrey! I was afraid that would be the situation. You have an excellent case for illegal discrimination based on sex. You could approach the HR department about this disparity in working conditions, if you have faith that management is reasonable. Alternatively, you could file an official complaint of sex discrimination with the EEOC at http://www.eeoc.gov. It is illegal for an employer to retaliate against an employee for filing a complaint, but you have more legal protection if you go to the EEOC with the complaint. The EEOC will investigate the complaint. By law, they have access to company records including payroll records and personnel files. If they find that discrimination has been committed, you will have the option of hiring a lawyer to sue the company, or the EEOC will sue them for you. Often, neither is necessary. Usually the discrimination stops as soon as the EEOC investigates. HTH, and thanks for reading the blogs!~ Caitlin

  77. Debbie Says:

    RE: Caitlin Says: March 1st, 2010 at 12:01 pm A non-exempt salaried employee can be docked for partial workdays missed.

    Is there a ruling, statement, paper or fact sheet from the DOL that states “A non-exempt salaried employee can be docked for partial workdays missed.”? If the answer is yes please provide the link. Thank you.

  78. Caitlin Says:

    Hi Debbie! You may be confusing exempt and non-exempt salaried employees. An exempt salaried employee must be paid his or her full salary for the day when the employee works any time at all during the day — even 5 minutes. A non-exempt salaried employee is covered by the same regulations as an hourly employee, and is entitled to payment only for hours worked, under federal law.

    We can provide some links, but first it is important to understand how the law and regulations work. There is very rarely a law or regulation to MAKE something legal. Everything is legal until a law is passed to make it illegal. So, for example, murder was legal until a law was passed prohibiting it. Regulations are the “fine print” of the law, established by a government agency. In this case, the agency is the US Department of Labor.

    Under the federal FLSA or Fair Labor Standards Act, an employer must pay workers at least the minimum wage for all hours worked, unless they are exempt. Non-exempt salaried employees are not exempt, so they are entitled to payment ONLY for all hours worked, under the law. There is no regulation under the FLSA that requires employers to pay any non-exempt employee for time NOT worked. This would include vacation pay, paid sick leave and paid personal time. It also includes hours not worked during the normal work day.

    Some employers have an informal or explicit agreement with non-exempt salaried employees to pay them for a minimum of 40 hours per week, or to pay the employee for at least 8 hours for each day worked. Some state Departments of Labor will enforce this agreement, if it is in writing. However, the employer is not required to offer such an agreement, and in most states can change it at any time. Even if the employer has such a policy in place, the non-exempt salaried employee is still entitled to overtime when he or she works more than 40 hours in the payroll week.

    The links you requested are below. If they are not live, copy & paste them into your browser. HTH, and thanks for reading the blogs!~ Caitlin

    US DOL webpage about paying non-exempt employees for hours not worked:http://webapps.dol.gov/dolfaq/go-dol-faq.asp?faqid=314&faqsub=The+Fair+Labor+Standards+Act+%28FLSA%29&faqtop=Laws+%26+Regulations

    The actual FLSA statute requiring that non-exempt employees be paid only for hours worked is here:http://www.dol.gov/whd/regs/statutes/FairLaborStandAct.pdf

    The complete FLSA regulations are here — and none of them require that a non-exempt employee be paid for hours not worked: http://www.dol.gov/dol/cfr/Title_29/Chapter_V.htm

    The complete list of US DOL Fact Sheets are here. None of them require that non-exempt salaried employees be paid for hours not worked: http://www.dol.gov/whd/fact-sheets-index.htm

  79. Debbie Says:

    Hi Caitlin,

    Thank you for the information that you have provided. It is a great help. I have another question that I hope you can help me with related to my first question.

    We had recently changed an hourly employee to non-exempt status. Unfortunately, we were under the impression that as a non-exempt, we had to pay her at the full 40 hours a week rate even though she worked less than 40 hours. Given your very clear explanation of only having to pay a non-exempt for hours worked, can we require the employee to return the money that was erroneously paid to her?
    Can we deduct the amount from future pay checks?
    Are we better off just leaving things alone and notify her that we paid her incorrectly and will only pay her for time worked from now on?

  80. Caitlin Says:

    Hi Debbie! You are very welcome – we are always here to answer your questions.

    Basically you have overpaid this employee due to an accounting or payroll error. How you handle this situation with the non-exempt salaried employee will depend upon which state the employee is in. Many states would allow the employer to deduct the overpayment from the employees next paycheck. Check your labor law posters to see if this deduction is permitted in your state, or post another question.

    This is lawful, because you have already paid the employee in advance for work she performed in this payroll week. For example, suppose that you have overpaid the employee for 10 hours of work in the past 6 months. From a legal perspective, you paid the employee in advance for 10 hours of work that she performed this payroll week. Therefore, if she worked 40 hours this week, you could pay her for all of it and then deduct the 10 hour advance from her wages.

    Many employee handbooks specifically give the employer the right to recover wage overpayments, although that may not be necessary in your state.

    To be fair, you should inform the employee in advance that you will make this adjustment to her wages. In addition, if the deduction is substantial, you may want to spread it over several pay periods.

    All of this is lawful under the federal FLSA.

    A few states such as California specifically prohibit an employer from recovering accidental overpayments to employees. In those states, when the employer makes an accounting error, the employer simply loses the money.

    A few states would require that the employer have a signed agreement specifying the amount to be repaid by the employee, in dollars and cents. In those states, the agreement cannot be signed under duress. This means that in those states, if the employee refuses to sign the deduction agreement or pay the money back, there is little you can do.

    Depending upon the amount of money involved, some employers might simply inform the employee that in the future, her weekly salary will be prorated based upon the number of hours that she works. Just bear in mind that as a non-exempt employee, she is always entitled to overtime when she works more than 40 hours per week.

    If you are not sure which policy applies in your state, post another question mentioning the state and we will research the deduction law for you. HTH, and thanks for reading the blogs!~ Caitlin

  81. Lynne Says:

    We have salary non-exempt employees in MD that are paid semi-monthly 86.67 forecasted hours. Are you required to pay a salary non-exempt employee that is forecasted (paid current) any hours worked that do not fall into OT? Example: the employee works 36 hours (9 hours per day) and then takes 8 hours of PTO in the same week (totaling 44 hours). The 4 hours worked extra each day does not fall into OT because it is not more than 40 worked hours in that work week. Is it ok to still only pay the employee for 40 hours that week? In essence they lose the 4 hours worked.

  82. Caitlin Says:

    Hi Lynne! The short answer is that paying non-exempt salaried employees currently based on forecasted hours is a nightmare. These employees really need to be paid based on actual time worked. Bear in mind that the federal FLSA deals with the unit of the payroll week, not a semi-monthly payroll period. So as an employer, you still have the legal obligation to pay the employee accurately for each payroll week.

    Actually, under your system in essence the employee loses 4 hours of paid vacation. This is problematic and is definitely not a best practice in HR. It may be illegal discrimination if employees of another sex, race, color, etc. do not also lose leave.

    Under the federal FLSA, a non-exempt salaried employee must be paid overtime when he or she works more than 40 hours in the payroll week. Most employers will allow workers to use leave only to total 40 hours in the payroll week. Example: If Katia works 36 hours in the payroll week, she would be permitted to use only 4 hours of paid leave, totaling 40 hours for the payroll week. Even if she worked 36 hours in 3 days, she would be permitted to use only 4 hours of leave during the remainder of the week.

    If you are going to deduct 8 hours from the employees vacation balance, then you need to pay the employee for 44 hours. This can all be straight time, since the employee did not work more than 40 hours in the payroll week. However, most employers would permit the employee to use only 4 hours of leave in this payroll week. HTH, and thanks for reading the blogs!~ Caitlin

  83. Cheryl Thompson Says:

    I work as an inside sales associate for a Travel Company. My job responsibilities were to assist our customers by resetting their passwords with the online booking product that we sold them or assisting in the negotiations of the hotel contracts for their companies. I do not sign any contracts, nor do I have any decision making responsibilities. My employer told me originally that I was an exempt employee then about 3 months later they changed my status to non-exempt without any warning. They then changed it back to exempt and then around six months later the CFO advised me that I was not an exempt employee and I was never an exempt employee. When I asked her how that could be since I no longer had to fill out a time sheet. She advised me that I was merely a salaried employee not exempt. I then said if that is the case then I am entitled to overtime pay for all the months I worked 50 + hours weekly. Needless to say I was then told I was exempt again. The problem is I was not treated as an exempt employee. I had to track my time. If I was out of the office for less than an 8 hour day I had to make up my time. I was out 1 day for Jury Duty and I was forced to use sick time. Do I have any recourse here?

  84. Cheryl Says:

    Sorry, I forgot to mention that I live and work in California

  85. Caitlin Says:

    Hi Cheryl! Yes, you have recourse. First, the employer cannot simply wave a magic wand and make you exempt. Nor is simply paying you via salary enough to make you exempt. In order to be exempt, your primary job duties must meet certain requirements under the federal FLSA and California wage payment laws. From your description, your job duties do not meet those requirements.

    Even if an employee qualifies as exempt, if the employer pays the worker hourly, or otherwise treats her as non-exempt, she is non-exempt permanently. An employer cannot switch a worker back and forth, making her exempt one week and non-exempt the next. An exempt employee is entitled to her full salary when she is on jury duty. By sometimes paying you hourly, and not paying you for jury duty, the employer has made you a non-exempt employee. It is likely that you have always been non-exempt as long as you have been in this job.

    So it appears that the CFO was right — you never were an exempt employee. You are entitled to back wages for unpaid overtime. Because you have asked your employer for this in the past and they have refused, you should file a claim for unpaid wages with the California DLSE at the link below. Do not tell the employer that you will do this — simply do it.

    The DLSE has the right to inspect the employers records and will conduct an investigation. It is likely they will find that you are due overtime for the past 3 years. Be sure to tell the DLSE of your conversation with the CFO, when you were told that you were never an exempt employee. Also tell them about your subsequent request for overtime wages, and it being denied. (Our best guess is that there is a difference of opinion, and the CEO is insisting that you be treated as exempt against the CFOs advice.)

    Both California and federal law require the employer to track all hours worked by non-exempt employees. If the employer has not tracked this info, the DLSE will use your written records, or rely on other information such as computer log-in times.

    You should act right away. There is a 2 to 3 year statute of limitations on unpaid overtime, so the sooner you file a complaint, the more you are likely to receive. Many employers will act pre-emptively by simply paying all the overtime claimed, as soon as they learn a complaint has been filed with the DLSE. HTH, and thanks for reading the blogs!~ Caitlin

    File a wage complaint at: http://www.dir.ca.gov/dlse/dlseWagesAndHours.html

  86. christina Says:

    Hi,

    My company is based in New York. We classify our hourly emplyoyees as salaried non exempt on a 35 hour work week. There is some confusion on how to pay all time off ie holiday sick vacation. If an empoyee works more that 35 hours we pay them straight time and anything over 40 is at overtime. The question is if I have an employee that works 29 hrs and takes 7 hrs vacation total hours is 36 should I be paying them 1 hr at straight time or can I just pay the base of 35 hrs? I cannot locate anything on this type of policy. On the other hand we do not dock non exempts for hrs not worked. We treat them like exempt staff but if they WORK over 35 we calculating st/ot. In our policy we do state that we will pay them for non worked hours. Please help!

  87. Caitlin Says:

    Hi christina! The good news is that the way you are paying your non-exempt salaried employees is essentially correct. By paying them straight time when they WORK more than 35 hours per week, and overtime when they WORK more than 40 hours per week, you meet the FLSA guidelines.
    The answer to your question is: most companies would not allow an employee with a 35-hour work week to work 29 hours and take 7 hours of vacation, totaling 36 hours. Most companies will allow an employee to use vacation or sick leave only to total the standard work week — in your case, 35 hours. An employee who worked 29 hours would be permitted to take only 6 hours of vacation or sick leave, totaling 35 hours. The employee would then be paid his or her usual salary for the week.
    However, if you do allow employees to work 29 hours and use 7 hours of sick leave or vacation, they should be paid 36 hours at straight time. (Some companies require that sick leave or vacation be used only in whole-day increments, not by the hour. In that case, if you do not pay the employee for the entire 7 hours, you are illegally depriving him or her of a promised benefit.)
    Whether or not non-exempt employees are docked when they are a few hours short is irrelevant to this issue.
    The New York Department of Labor requires that the employer give employees a written statement of wages and benefits, and honor those benefits. If you do not pay the employee for all vacation and sick leave, you are in violation of that law. HTH, and thanks for reading the blogs!~ Caitlin

  88. teresa Says:

    I am an exempt employee who was on medical leave. When I returned to work the 1st 2 weeks had to be reduced hours to build up strength. My employer changed my status to hourly temporarily during that time so that they could pay me part time. Then back to exempt. Is that legal?

  89. hrlady Says:

    Hi Teresa,

    It is legal to change your status but it may just be a terminology issue. If you exhausted all of your leave benefits, for example sick and/or short term disability, then your employer did not have to “pay” your regular salary when you were on a reduced schedule. Any salary can be reduced to an hourly rate of pay, and it appears they were paying you a salary based solely on the hours you worked.

    If you were entitled to overtime, which it appears you were not, and your employer did not pay the overtime, that would not be legal.

    Thank you for reading the HumanResourceBlog.com

  90. Robert Says:

    Hello my name is robert i started a new job in march 26 2012 on june 28 2012 i hurt myself leaving my salaried job in the parking lot where my job is located i was out until august 24 of 2012.. but once i turned in all my paperwork and clearance papers from my doctor my supervisor stated that they have “no hours for me and that im being made into an hourly associate” but my employer never paid for benefits or anything we dont have insurance no overtime pay no holiday pay no matter if your a new or old employee. They suckered me into salary so i took it. I got hurt now im trying to return and im getting pushed to the side.. im in california is there anything i can do? did i mention that no meal breaks you have to eat while at your station…
    p.s i worked 4 ten hour work days..
    Thanks robert.

  91. Marsha Says:

    Im a school food service manager, I have asked if we are exempt or non-exempt. Noneone will answer me.
    I have alot of fellow managers that we are unsure of our hours. We are told we are hourly but salary. But they tell use we must be on site for 8 hours 6:30 to 3pm) we must take a 30 min. break and then they hold meetings starting at 3pm and if its a day off from school and we have a meeting(7am to 4pm which an hour break) if the meeting ends early they lock us in the room by blocking the doors.

  92. hrlady Says:

    Hi Marsha,

    There is very little difference between an hourly worker and salary non-exempt employee. An hourly employee is paid an hourly rate and is entitled to overtime (time and one half) for any hours worked in excess of 40 hours. The same is true for a salaried non-exempt employee, however their pay is based on a determined salary (which can be broken down to an hourly rate) and they are also paid for any time worked in excess of 40 hours in a workweek.

    Either classification entitles you to overtime for time worked in excess of 40 hours.

    Thank you for reading the Humanresourceblog.com

  93. Getch Says:

    I am a salary non-exempt employee. We have a new time and attendance system. If you clock in early 5 to 10 minutes, they consider you starting on your regular starting time. If you clock out 5 to 10 minutes late, they consider it your regular time. No OT is calculated. If you clock in 1 min late or out 1 minute early they dock your pay. This is in CT. Is this legal??

  94. hrlady Says:

    Hi Getch,

    Yes, the method your company is calculating hours is legal. The FLSA laws requires employees to keep records on wages, hours and other items as specified in Department of Labor regulations. Time clocks are not required under the FLSA. FLSA, states that there has been the practice for many years of recording the employee’s starting and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, these arrangements average out so that all time actually worked by the employee is properly counted and the employee is fully compensated for all the time actually worked. Such practices of recording working time are acceptable, provided they do not result over a period of time, in failure to count as hours worked all the time the employees have actually worked.

    Thank you for reading the Humanresourceblog.com

  95. Event Planning Says:

    If I I have salaried exempt employees, in the state of California… Can I be legally penalized for giving them extra time off for hour per hour worked – over their 40 hrs?

    Thanks

  96. hrlady Says:

    Hi Event Planning,

    The federal Fair Labor and Standards Act requires that all non-exempt salaried employees must be paid time and one-half for all hours worked over forty. There is nothing in the law which states that a company can or cannot grant compensatory time off to exempt employees.

    Compensatory time is sometime granted by companies whose exempt employees worked in excess of forty hours per week for a special project or during a weekend or on normal scheduled time off. The only requirement is that if you grant compensatory time off, it is recorded and given to employees upon reasonable request to use the time.

    Thank you for reading the Humanresourceblog.com

  97. Lynn Says:

    Can a Missouri employer change an employee from salary to 30 hours a week for 7 months of the year to save money. Job description did not change nor did amount of work required. Basically a reduction of pay but they are calling it reduction of hours. One week notice given for change.

  98. hrlady Says:

    Hi Lynn:

    An employer can change an employees working hours at any time. If the employee is hourly or salary non-exempt the reduction in hours can be associated with a reduction in pay.

    If you are a salary exempt employee, you must be paid your agreed upon salary regardless of the hours worked. However if your pay was reduced lower than $455.00 per week then your company is required to pay you at least minimum wage and overtime and our exempt status can be lost.

    Thank you for reading the Humanresourceblog.com

  99. cindy Says:

    I love your blog- and was wondering if a hourly employee recieved a promotion to a full time exempt position, and they had accruded PTO time- and not that does not apply- do they paid out for that or is it taken away?

  100. hrlady Says:

    Hi Cindy,
    If the employee is promoted and had accrued PTO time, typically they would be able to use their accrued PTO time. Receiving a promotion should not mean you must start over accruing time. To be sure, you should check any policies or the Human Resource department for your companies’ rules on PTO time and promotions.

    Thank you for reading the Humanresourceblog.com!

  101. Linda Woods Says:

    I had been working in a part-time non-exempt position(approximately 20 hrs/week but fluctuates up to 40 hrs/week) for 18-19 years in Illinois. Recently my employee informed me that my position is exempt and that I would not be paid any additional compensation unless I worked over 1 and 1/2 hrs beyond my regular hours for that particular workday. Is that legal? Thanks!

  102. Nancy Says:

    What is the main reason supervisors with responsibility are salaried as opposed to hourly.Do they typically work more than 40 hours a week?

  103. hrlady Says:

    Hi Linda,
    A person in a non-exempt position is only entitled to overtime when they work over 40 hours in a work week. Even if you worked only 20 or 40 hours you would not be entitled to overtime unless you worked 41 hours.
    If as your employer is now stating you are exempt, you must receive a salary of at least $455.00 dollars per week regardless of the number of hours worked. There are certain other requirements that must be met for the position to be exempt.
    You should speak to the Human Resource Department for additional clarification.
    Thank you for reading the Humanresourceblog.com

  104. hrlady Says:

    Hi Nancy,
    The U.S. Department of Labor, Wage and Hour Division classifies employee as exempt from overtime or eligible for overtime.
    Each position must meet certain criteria established by the Wage and Hour Division in order to be exempt from overtime.
    Some reasons for being exempt, according to the government are:
    o Compensated at least $455.00 per week.
    o Must perform non manual work directly related to management or general business operations or employee’s customers.
    o Exercise discretion and independent judgment.
    o Have advanced knowledge of work, professional position and college education training.
    These are just a few qualifications; however each position undergoes a review for the status.
    Thank you for reading the Humanresourceblog.com

  105. Jeff Davis Says:

    In California can an employer pay less for an exempt employees health care premium compared to a non exempt when the health plan is exactly the same

  106. hrlady Says:

    Hi Jeff,
    Per the California Office of Business and Economic Development, the employer may have a standard plan for all employees or may offer each employee the same amount of dollar benefits and permit the employee to select desired benefits from a menu of options offered by the insuring company. All employees must be treated equally in regards to health insurance plans; however, an employer may offer different insurance plans to different groups of employees, such as production versus managerial employees, so long as that distinction is not based on any protected class considerations. I would interpret this to mean that offering the same plan but paying different amounts of the premium for different groups of employees would be unacceptable.

  107. Anita Colby Says:

    I want to make sure that I understand, we have salaried non-exempt employees that are paid under a time and attendance system, the same as hourly employees, meaning that they are only paid for the time they work and OT if worked over 40 hours per week. We are in SC, is this legal? But we are the only location for this company that pays this way. The others pay the entire salary with an expectation that you make the time up.

  108. hrlady Says:

    Hi Anita,
    Exempt and non-exempt classifications fall under the federal Fair Labor Standards Act (FLSA) not state law. Yes, it’s legal to pay a non-exempt employee a salary as long as the employee receives overtime wages for hours worked over 40 in a work week. Deductions can be made from non-exempt salaried employees’ pay for time not worked since non-exempt workers under the FLSA are required to be paid only for time worked. However, non-exempt employees, whether hourly or salary, cannot take comp time in lieu of overtime wages. It’s generally good practice for a company to administer timekeeping/payroll in the same manner across the agency regardless of location. This ensures all employees are treated in a fair and equitable manner. Of course, depending upon the company structure and nature of the business at each location differences may be warranted. HTH.

  109. Lia Says:

    I work for landscaping company in TX. 22-25 employees- laborers are hourly and we have several drivers/foremen. What would be the best way to pay our guys? They all work unpredictable hours each week. Is hourly pay the best way for laborers? What about our foremen that are non exempt salaried? My boss thinks about salary covering 45hours/week. Thank you so much!! :)

  110. hrlady Says:

    Hi Lia,
    Considering the non-exempt employees work unpredictable hours each week it’s best to pay them hourly. Otherwise, paying them as non-exempt salaried you would be constantly adjusting their hours to reflect the actual hours worked. Remember that non-exempt salaried workers are still entitled to overtime pay under the federal FLSA. The term “non-exempt” refers to the employee’s FLSA classification while “salary” refers to payment method. Just paying an employee a fixed salary doesn’t exclude the employee from overtime pay eligibility. Any employee deemed to be non-exempt must be paid overtime rates for hours worked over forty in a given work week. So, consider the FLSA “tests” to determine if the foremen are exempt or non-exempt from the FLSA. If they’re non-exempt and you choose to pay them a salary just remember that you must still pay them for each and every hour worked including applicable overtime.

  111. Lia Says:

    Thank you for your respond. I have one more question. If non-exempt salaried worker works lets say 3 days, total of 29 hours but does not come to work /no call, no show/ for next two days and if this person is paid by Fluctuating workweek method, how will I pay him? I see samples for overtime, but I cannot find guide for this situations. The worker has no vacation days, no sick days or personal days.
    Thank you

  112. hrlady Says:

    Hi Lia,
    The DOL doesn’t provide a fact sheet on this matter; however, an answer can be derived from DOL opinion letters. Since the intention of using the fluctuating work week method is to compensate an employee a fixed salary regardless of the number of hours worked each week, an employer utilizing this method may not make deductions from an employee’s salary for absences occasioned by the employee. However, an employer may take a disciplinary deduction from an employee’s salary for willful absences or tardiness or for infractions of major work rules, provided that the deductions do not cut into the required minimum wage or overtime compensation. If the deductions are made frequently or consistently, then the practice of making such deductions would raise questions as to the validity of the compensation plan.

  113. Ryan Says:

    Hi, I am an employer. I paid my manager an agreed upon salary for up to 45 hours a week, so all his time cards had his salary for 45 hours a week. He typically only worked 38-39 hours a week and was scheduled for 39.25 hours every week, but I left his payroll information the same every week, he never clocked in or out, he just worked the 39 hour schedule I had posted for him every week. I thought he was exempt salary but apparently he is not. He recently quit and now he is claiming that he worked 50 hours a week and wants over time back pay for the last 3 years. I have old schedule and employees that can confirm his actual hours worked, but did I make a huge mistake putting 45 hours a week on his pay stubs regardless of his hours worked? And how much back pay can he actually get from this law suit?

  114. hrlady Says:

    You have unfortunately discovered why it is so critical to properly classify employees as exempt or nonexempt. The monetary damages can be extremely high, as they can include not only back pay for unpaid overtime, but also taxes, penalties, interest, and attorney’s fees. Also, in most cases, the employer may be required to pay up to two years of back wages, or three years if it is determined that the misclassification was intentional.

    If the employee files a lawsuit, you will need to be able to prove the hours that he actually worked each day. If you do not have these records, the court will rely on the records the employee provides. And since your own payroll records show that he worked 45 hours every week, it is going to be extremely difficult for you to prove otherwise.

    Keep in mind that it is acceptable for a nonexempt employee to have a set schedule and set number of hours per week. However, if the employee works more or less than the scheduled hours, you would need to document the correct hours for that day to comply with FLSA recordkeeping regulations.

    It is also acceptable to pay a nonexempt employee a salary. However, if the employee works more than 40 hours in a work week, you would still have to pay him the overtime pay he is due.

  115. Linda Prescott Says:

    I am working on a job description for an employee that I want to hire. We want him/her to be a salaried exempt. What wording does that job description need to include in order to make this happen.

  116. hrlady Says:

    Hi Linda, It’s not just a matter of including certain verbiage in a job description to meet the criteria for exempt status under the FLSA. Exempt employees must be paid at least $455 per week on a salary basis and must perform exempt job duties. There are three typical categories of exempt job duties titled executive, professional, and administrative.
    Job duties are exempt “executive” job duties if the employee regularly supervises two or more other employees, has management as the primary duty of the position, and has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).
    “Professionally” exempt work is predominantly intellectual, requires specialized education, and involves the exercise of discretion and judgment. Advanced degrees are the most common measure of this but are not absolutely necessary if an employee has attained a similar level of advanced education through other means and performs essentially the same kind of work as similar employees who do have advanced degrees.
    “Administratively” exempt employees provide support to the operational or production employees and have a major impact on the overall business. An administratively exempt employee has the authority to create or interpret company policies, has responsibilities that directly relate to the overall business operation, has the decision making ability to make significant financial impacts, and has the authority to deviate from company policy without prior approval.
    An employee that doesn’t meet all three “tests” under the FLSA (salary level, salary basis, and job duties) doesn’t meet exemption criteria. HTH!

  117. Robb G. Says:

    Hi! This is such a great forum! My scenario is this: A GM of a retail operation is considered Salaried Exempt by his employer and makes $1000/wk. His company requires him to clock in/out for every shift for purposes of merely keeping track of his hours. Should he really be treated/classified as an Hourly Non-Exempt employee then? In which case, he’d be entitled to OT for hours worked over 40 each workweek, right?

  118. hrlady Says:

    Hi Robb,
    Glad you like the blog! As mentioned, in order to be exempt an employee must meet all three “tests” as described by the FLSA. Usually, a general manager who earns more than $455 per week is exempt from FLSA overtime regulations. It’s acceptable to require exempt employees to clock in/out without jeopardizing the exempt status. There are many reasons why employers may choose to require exempt employees to track their time including allocation of resources, billing clients, recording PTO usage, or to manage eligibility for certain federal laws, such as the Family & Medical Leave Act. A non-exempt employee is subject to the FLSA overtime provisions and must be paid time and a half for all hours worked over 40 in a workweek. HTH!

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