Employment Status Change: Hourly to Salaried Pay

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 14, 2021

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If you are an exempt employee, there is generally no upper limit to how many hours you can be made to work per week. (Or more technically: you can be made to work up to 168 hours per week.) There are some specialized exceptions to this—for example, certain industries may have safety rules that mandate maximum hours or minimum time off, such as the way some states cap how many hours interns can be asked to work in hospitals. Also, if a given employee is being made to work longer than others due to an illegal discriminatory reason (e.g. because of his or her race, sex, religion, age over 40, or disability) or illegal retaliation (e.g. as punishment for having brought a discrimination complaint), that might itself be illegal and actionable. However, barring those few, special cases, exempt employees can be made to work any number of hours.

As for when an employer can shift or change an employee’s classification from non-exempt (e.g. hourly employee earning overtime) to exempt, there are only two legal occasions for that:

First, if the employee has been misclassified to begin with, the employer is allowed to correct that misclassification. That is, if the employee really should be an exempt employee and it was wrong to classify him or her as non-exempt, the employer may start paying him or her on the correct basis.

Second, if the nature of the employee’s job changed, so that a formerly non-exempt employee now truly is exempt. For example, say that someone was a manager without a staff—in all ways, he or she met the test for being an exempt executive (managerial) employee, save for not having staff reporting directly to him or her. However, the company has expanded and hired, and now that person is supervising at least two full-time staff or their equivalents. In that case, that person would now meet the requirements for exempt executive and could be paid on that basis.

However, the important thing to remember is this; employers cannot arbitrarily change an employee’s classification. An employee must truly be exempt to be treated or classified as exempt.

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