Can a employer after you have been working hourly change it to salary?

1 answer  |  asked Dec 18, 2003 3:22 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
From Hourly to Salaried

Under the employment at will doctrine -- that rule which is more other described as a rule allowing an employer to fire an employee for any reason or no reason at all -- the employer can at any time change not only your rate of pay, but also the method by which your pay is calculated. So, the employer can change you from hourly to salaried at any time.

But, let's not stop there, because this fact scenerio is so much fun - - -

Employers will often change an employee from hourly to salaried in order to avoid paying overtime. Here is where a big exception to the employment at will doctrine comes in. The exception is the Fair Labor Standards Act, which governs many wage and hour issues, incliding overtime.

Under FLSA, employees are usually considered hourly. If you work more than 40 hours in a week, hourly employees must be paid overtime under the FLSA. Under FLSA, an employer cannot get around the overtime rules simply by reclassifying an employee as salaried.

To get out from under the overtime rules, an employer needs to show that an employee falls under an exemption to the overtime rules. The big three exceptions are for executive, administrative and professional employees. Administrative employees are the biggest problem of the three, but you would not become administrative simply by being given a new title like "administrative assistant." Whether you fit under an exemption depends on the type of work the employee actually performs. If the work isn't considered to fall under an exception, the employee continues to be entitled to overtime.

Being classifed from hourly to salaried is a flag that the employer might be engaging in something which violates certain of the laws governing the workplace. Another flag would be being reclassified from employee to independent contractor.

posted by David M. Lira  |  Dec 18, 2003 4:26 PM [EST]

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