Overtime vs Docked pay for a non-exempt Salaried Employee

I'm on salary, but my boss says that any overtime worked is "voluntary" and we need pre-approval before earning overtime pay (although its never been approved in the 2 years I've been here). She said that I am a non-exempt salaried employee and that I will not get overtime pay because I get commission on top of my salary, but my salary will be docked for any time out of the office during work hours, except for the hour lunch allowed, which I never take.

Also, how can I legally keep track of my hours? I work off my laptop and we do not have a time stamp.

2 answers  |  asked Sep 20, 2004 4:53 PM [EST]  |  applies to Texas

Answers (2)

Trang Q. Tran
Salaried does NOT = exempt from overtime

I think your use of the term non-exempt salaried employee is backwards. An employee that is exempt from the Fair Labor Standards Act is not entitled to overtime. An employee that is non-exempt from FLSA IS entitled to overtime. If an employer categorizes an employee as a non-exempt employee for overtime basis, he or she is entitled to overtime for hours worked in excess of 40 hours in a work week.

Your question reflects 2 common misconceptions:
1. First, some employers try to avoid overtime by characterizing the overtime as "unauthorized," and refuse to pay it. Work not requested, but suffered or permitted, (even if it is labeled voluntary) is work time that must be paid.
2. Second, being salaried does not exempted an employee from overtime pay. To be exempted from overtime pay an employee must be paid a salary AND must perform exempt job duties. It is the job duties that is often the subject of overtime litigation.
In many cases, even an employee that is properly exempted from overtime pay will be re-categorized as a non-exempted employee entitled to overtime pay if the employer improperly docks their pay on an hourly basis and treats them like an hourly employee. As far as keeping track of hours worked, any contemporaneous time record that is accurate may be considered by the courts as time records.

posted by Trang Q. Tran  |  Sep 20, 2004 7:31 PM [EST]
Trey Henderson

It sounds as though you might have a claim for overtime. I suggest that you seek an attorney and/or go to the Department of Labor. Just because you are paid a salary does not mean that you are not entitled to overtime. There are certain tests to determine if you are exempt from overtime. In addition, if you are an exempt employee but are docked pay, it may make you eligible for overtime. As far as tracking your hours goes, keep a log as proof of hour worked.

posted by Trey Henderson  |  Sep 20, 2004 7:27 PM [EST]

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