Salaried Workers, Do You Get Overtime Pay? Odds Are You Should!

OvertimeJust because you're salaried doesn't mean you're automatically exempt from overtime. Most employees are entitled to be paid overtime (1.5 times your regular hourly rate) under the Fair Labor Standards Act for any hours worked over 40 per week. Some employees are exempt, but not nearly as many as most employers and employees assume.

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If your employer is treating you as exempt from overtime, odds are they got it wrong. Here are some ways you might be exempt from overtime.

Specific jobs excluded: movie theater employees, live-in domestic employees, farmworkers on small farms, railroad employees (you're covered by the Railway Labor Act) and truck drivers, loaders, helpers and mechanics (covered under the Motor Carriers Act), computer professionals making at least $27.63/hour, commissioned sales employees who average at least 1.5 times minimum wage/hour, auto dealer salespeople, mechanics and parts-people, and seasonal and recreational workers. There are others who are exempt from all or part of the Fair Labor Standards Act, listed here.

Salaried employees: If you make less than $23,600 ($455/week) you're never exempt. If your employer cuts your pay if you miss part of the work day, you're not exempt. But they can deduct paid time off from your leave bank or PTO if you miss work. You can't have your salary reduced if there is no work or if work is slow. You can be docked for missed full days due to disciplinary suspension, sick days, or personal leave. But even if you're salaried, you're still not exempt from overtime unless you also have exempt job duties.

Executive duties: If you're salaried and they don't take improper deductions, then you're exempt if you supervise two or more employees, if management is your primary job, and if you have genuine input into the hiring, promotion and firing of your subordinates.

Learned professions: This exemption includes doctors, lawyers (not paralegals), dentists, teachers, architects, clergy, RNs (not LPNs), engineers, actuaries, scientists (not technicians), pharmacists, and other learned professions (usually requires an advanced degree).

Creative employees: Creative employees who are exempt include actors, musicians, composers, writers, cartoonists, and some journalists. People in this category don't necessarily have to be paid on a salary basis to be exempt.

Administrative duties: If you perform office or non-manual work that's directly related to management or the general business operations of your company or their customers, and you are regularly required to use your independent judgment and discretion about significant matters, then you might be exempt. An administrative assistant who is the CEO's right hand is probably exempt, but the secretary to a mid-level manager probably isn't.

Retaliation: The employer isn't allowed to retaliate against you for objecting to not being paid overtime or minimum wage. But that doesn't mean they won't do it. If you do object, make sure you're right, and put the objection in writing so that you have proof you objected before you were fired.

Consequences: For the employer who gets this wrong, the consequences are potentially huge since the courts will allow your lawyer to bring in the other employees who also weren't paid correctly, and make the company pay them too.

If you're regularly working over 40 hours per week, check with a lawyer to see if you're owed money. Unpaid overtime owed may also give you leverage to negotiate a better severance package if you're fired or laid off.

Next: 10 Things You Need to Know Before You Demand Your Work Break



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Donna Ballman

Donna Ballman

Contributor

Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.

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pauljjackson71

i work for a cable company as a construction coordinator. working 45-50 hours a week at times. traveling out of town and sometimes having 12-15 hour days. what is my compensation for putting in overtime? comp time or ot pay?

March 18 2014 at 4:48 PM Report abuse rate up rate down Reply
Michelle

I was hired as an independent contractor that is paid a salary, so does the same thing pertain to me. I am constantly working overtime and I am not paid for days that the office is closed, most recently for a natural disaster. Should I be getting paid for that and overtime?

September 20 2012 at 4:17 PM Report abuse rate up rate down Reply
1 reply to Michelle's comment
qwrtyp

the idea of being payed salary as an independant contractor is illegal on its own basis. If a company is forcing you to work for them and is setting specifically your work hours by law and by the way taxes are supposed to be payed its illegal for you to even be an independant contractor. You can be on a contract but thats different from being independantly contractor. if you are you can resell all your work to there competitor and work for more then one company also you can legally set your own hours and work for other companies without the worry of being fired. people who are in sales like for financial companies are independant contractors. if your salaried and they set your hours get your job title fixed asap so the taxes are legal or make money the ways above because they are taking huge advantage of you.

October 23 2013 at 1:46 AM Report abuse rate up rate down Reply
carmi2003

i work in a furniture store, i am "salaried" I am expected to work 6 days a week and i have to work 48 hours during those 6 days. my salary is only $200 a week and then i have to make up the rest in commission. my slow season is from september - may, im lucky right now if i see an extra $100-200 in my paycheck for commission, so during november and december i saw alot of weeks where it was just the salary pay, which puts me way below mim wage. I dont even take time off for meals, im not sure what my rights are or what my boss can and cant do. im looking for a new job right now but how do i keep myself protected until then?

January 13 2012 at 6:52 PM Report abuse rate up rate down Reply
Dreamer

How about this one. Salaried. do meet exempt status. told hours are m-f 7-3:30.
Office manager schedules you someone to see at 3:30. and two of the other days you are there till 5 pm
every week. So actually I work scheduled 45-50 hours every week. But on paper it looks like 40.
I don't get it. I feel like this is employee abuse. Do I speak to the powers that be or do I just move on. I have tried one about 4 months ago. Nothing came out of it. said I was salaried and that was all they would do. Please help with direction.

January 01 2012 at 11:37 AM Report abuse rate up rate down Reply
mlidyoff

i work in a warehouse and am salary. should i get overtime.thx

December 06 2011 at 2:55 AM Report abuse rate up rate down Reply
loritaosburn

Does this also apply to salaried employees at Indian Casinos?

November 03 2011 at 10:41 AM Report abuse rate up rate down Reply
Sweetie

I have a question. If your salary and you miss a day of work because of being sick can your boss not pay you for that day. A place I use to work the boss would take a day of pay for the sales guys if they were out sick even though they are on salary. But when his son would miss work he doesn't take the pay away from him at all. He was out sick one time for three days and he got paid for all those days. I don't see how it is fair that the other guys don't get paid for a day if they are sick and the other guy does. We don't get sick days either.

July 24 2011 at 3:49 PM Report abuse rate up rate down Reply
jlogan2664

The reasons there are labor laws protecting overtime pay is too many companies did not pay overtime when they should have by saying a certain position did not get overtime or making a position exempt when it really wasn't. My question is what do you do when you have a salaried employee who chronically works less than 40 hours a week but she's a valid salaried employee and has to be salaried? I'm at my wit's end trying to get her to do the work for which she's paid and HR keeps saying I can't make her clock in and out or watch her hours, it has to be tied to performance. Well, good luck with that. I'm basically stuck with an employee who mentally retired a long time ago and continues to draw a salary and benefits for doing little or no work.

July 19 2011 at 9:45 PM Report abuse rate up rate down Reply
1 reply to jlogan2664's comment
EmployeeAtty

If she's not getting her work done, write her up. Surely HR would support that. You might check with the company's attorney on this issue because you can always terminate for performance issues.

July 20 2011 at 11:40 AM Report abuse rate up rate down Reply
crazy ray

Hey, it's worse than not getting overtime. In the place I worked, they expect all the overtime they need, whenever they need it, from salaried workers. But just you be an hour late for work, or need to take a longer lunch and they're looking for you to claim it on a time sheet. It was a one way door. One of the reasons, not the biggest however, that I decided to leave them behind.

July 19 2011 at 6:59 PM Report abuse rate up rate down Reply
klfcojss

WE DON'T A CEMEX

July 19 2011 at 5:19 PM Report abuse +1 rate up rate down Reply

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