Human Resource Blog

Salaried employee with non-exempt status

I current work for a company that has informed me that they need to cut all costs for the winter months. Therefore we are being laid off. They are unsure if the business will re-open in the spring. I have held the position as Manager for the past 20 years. Just this past year the comapny was taken over by other family members. They apparently changed my status by not allowing me the control of HR activities like hiring, firing, ordering supplies and receiving billing charges to check for accuracy. As I understand; as a non-exemt employee I should be compensated for overtime at the overtime rate of 1 1/2 my hourly wage. This has not been the case. I have received a weekly paycheck that reflects 40 hours. My time does fluxuate weekly but on average I have anywhere from 10 -35 hours of overtime each week. I have tried to speak with my employer regarding what I call banked hours and have been ignored. Can you please explain what recourse I have.

There is no such thing as *banked hours* in private business.

Under federal law, an employee is either exempt or non-exempt.

Non-exempt employees are hourly or salaried employees who are entitled to overtime when they work more than 40 hours in the payroll period. Overtime cannot be *banked* for future use. (There is an exception for employees of state and local governments, and some non-profit government agencies.) As a former HR pro, if you feel that you are genuinely a non-exempt employee, you should file a wage complaint for overtime with the US Department of Labor at www.dol.gov.

It is possible that you are still an exempt employee, based on your primary job duties. You could be an exempt Administrator or Executive under FLSA, the federal Fair Labor Standards Act. An exempt employee is never entitled to overtime, even when he or she works 120 hours per week (or more), every week.

Many employees assume that a *normal work week* is 40 hours, and that anything they work over and above that is extra. They also assume that at some point in the future the are entitled to take time off in exchange for working extra hours. For example, the employee may assume that because she works 50 hours this week, she is entitled to work 30 hours next week or one week next month. This is just not true.

The employer can determine the number of hours that an exempt employee must work to meet performance expectations. An exempt employee can be expected to work 100 hours per week, every week. An exempt employee who only works 90 hours one week must be paid her full weekly salary. However, she can be disciplined or terminated for not fulfiling the employers performance expectations.

It is more common for the employer to expect the exempt employee to work as many hours as it takes to get the job done. This is the case in your situation. The employer has been treating you as an exempt employee who is expected to work 50 to 75 hours per week. As long as you have been paid your salary every week, you have been compensated in full for that time and are not entitled to any additional time off. Again, if you believe that you were not genuinely an exempt employee, you should file a wage complaint with the US DOL.