Can an employer schedule a non-exempt “salaried” employee for 50 hours per week (10 hours per day) but the only records show 40 hours per week (8 hour day) in the payroll system?

Paychecks show 80 hour bi-weekly, even though we work 100 hours and pull one Saturday shift every 10 weeks. This is all for a salary and no overtime applies, however if we miss a day our pay is deducted if no PTO is available.

Asked on August 18, 2015 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

If an employee is salaried but not exempt from overtime, then they must be paid additional compensation for all hours worked past 40 in a workweek, and failure to accurately track hours worked or pay the additional compensation is a violation of wage of hour laws such as of the Fair Labor Standards Act, or FLSA.
As you seem to know, not all salaried employees are exempt from overtime to be exempt, an employee must be salarid AND also meet one or more of the tests for exemption. You can find those tests on the U.S. Dept. of Labor website.
If a salareied employee is not exempt from overtime, then for each hour past 40 they work in a week, they must be paid an amount equal to 50% of their effective hourly rate. For example John Doe is paid $52,000 per year, or $1,000 per week, which works out 40 hours/week basis to $25 per hour. He works 50 hours one week. He must be paid, for the extra 10 hours, an hourly amount equal to 50% x $25/hour, or an extra $12.50 per overtime hour, which is $125 for 10 hours.
If you believe that there is a wage and hour violation, you can contact the federal or state department of labor.
Yes, if you are salaried but miss an entire day of work, you can be docked a day of pay if you did not have or use PTO.


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