Salaried Workers, Do You Get Overtime Pay? Odds Are You Should!
Just 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.
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.
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Donna Ballman’s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently released and is currently available for purchase. The book won the Law category of the 2012 USA Best Book Awards. 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 practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011 ABA Blawg 100 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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