Salary or Hourly??????

I am paid on a salary basis. I do not get over time if I work over 40 hours. I was informed recently that my boss does not pay for sick or holiday time. However, he did not let that be known until he told me that "I owe him hours" for the 3 days I was sick and for all the holiday time that was missed because the office was closed. Now he wants to take money out of my check every week until it is made up. Can he do that. It seems like I am only salary when it benifits him. Thank You for you time.

1 answer  |  asked Nov 2, 2007 11:57 AM [EST]  |  applies to Ohio

Answers (1)

Gregory Gordillo
Salaried Employees Might Be Owed OT Pay

The short answer is that if you were an employee who was exempt from being paid overtime compensation before, then your employer may have every likely caused you to become an employee to whom overtime compensation now is owed.

Many employers and employees believe that if a salary is paid, then the employer does not owe any additional compensation for overtime. These employers and employees are often mistaken. The two most common mistakes that are made is the failure to either recognize that 1) the employee's duties are such that the employee will be owed overtime regardless of how the employee is otherwise paid; and 2)certain deductions taken from and employee's "salary" result in the employee being converted from a salary to an hourly employee.

A few job types exist where an employee is not owed overtime pay even though the employee is not paid a salary. The most common examples of these jobs are medical doctors, lawyers, teachers, and certain kinds of salespeople and computer programmers. Most of the time, however, the question of whether an employee is owed overtime pay depends on two things: 1) The duties the employee performs; and 2) whether the employee is paid a salary. If the employee's duties do not fall within the exemption classifications provided in the overtime laws, the employee is owed overtime. Even if the duties are within the classifications, in most cases, the employee will be owed overtime if the employee is not paid a salary of at least $455 per week. In addition, all employees who earn less than $23,600 per year are owed overtime compensation when they work overtime.

In your case, you have not described your job duties, but I will assume that your job is one that must be paid a salary for an employer to avoid paying overtime compensation. That means the question in your case is whether you are actually paid a salary. If not, and if my assumption about your job duties is correct, the employer would owe overtime compensation to you.

Being paid a "salary" means that both you and your employer have a clear understanding that you will be paid a fixed amount for your work in a week, regardless of how many or how few hours in the week you work. Although an employer is allowed to take deductions from your salary for certain reasons, most deductions will convert you from a salaried employee to an hourly employee.

Deductions from your pay for sick time generally are deductions that will convert you from a salaried employee to an hourly employee. The primary exceptions to this rule arise when the employer has a qualified sick leave benefit plan that allows for deductions and when you are taking a leave of absence covered under the Family Medical Leave Act.

A salaried employee will always be converted to an hourly employee if the employer takes a deduction for lack of working hours available to the employee. That is almost certainly what your employer has done to you by taking a deduction from your pay for your not working holidays that were unavailable because of the office being closed. So you have most likely been converted from a salaried employee to an hourly employee because of some, if not all, of the deductions your employer has taken.

To be certain about whether you are owed overtime, however, you should consult directly with an attorney who can review all of your facts and provide you with specific legal advice. What I have provided here is merely genereal, instrucional information. Your matter seems sufficiently serious to warrant obtaining legal advice directly from an attorney. In addition, if you are owed overtime compensation, an attorney experienced with these matters will help you recover the most money possible under the law, and this can be a substantially greater amount than you might otherwise be able to convince an employer to pay.

posted by Gregory Gordillo  |  Nov 2, 2007 1:40 PM [EST]

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