Has my employer broken the FLSA by paying a Blue Collar worker salary other compensation with minimum work hours greater than 40Hr/Week?

UPDATED: Sep 30, 2022

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Has my employer broken the FLSA by paying a Blue Collar worker salary other compensation with minimum work hours greater than 40Hr/Week?

My employer pays me a salary equal to what I made hourly for a 40 hour work week plus a flat labor rate for work performed outside my primary duties. I have a minimum 48 hour work week of which at least 8 hoursor however much I go over 40 must be at a billable flat rate labor hours. My compensation is only limited by my ability, knowledge, and work availability. Honestly it’s a good deal for me, for example my YTD compensation is currently greater than I would make with overtime for the whole year. But as a blue collar worker I don’t think I meet any of the Exemptions, although I currently make more than the weekly minimum although well short of the proposed amount that was supposed to take affect 12/01/2016. I fear that I will soon be returning to a 40 hour work week and scrambling for a part time job to make up the shortfall.

Asked on December 5, 2016 under Employment Labor Law, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

If you are not exempt from overtime, either due being hourly (hourly employees are never exempt), or being paid a salary less than the current threshold for exemption, or because your job duties and authority do not meet one or more of the "tests" for exemption (see below), the you *must* be paid overtime for all hours worked past 40 in a week. Even salaried non-exempt workers get overtime: you calculate their effective hourly rate (divide weekly salary by 40, basically), then pay them an overtime "premium" equal to 50% of that effective rate for all hours worked past 40. (They don't get 150% because their salary takes care of all "base pay" for the week--they just get the additional overtime premium.) If your arrangement works out to equal to or better than that, there's no point in taking legal action or filing a complaint with the department of labor: you're already getting at least as much as you are entitled to. If your arrangment is worse, then you may wish to file a complaint: you could potentially be eligible for back overtime for up to the last two years (you can only go back 2 years on a complaint like this).
As for the tests: you can find them on the U.S. Department of Labor website, under "overtime." The main ones to look at for most jobs are the "executive" (which really should be called "managerial," since it applies to non-executive managers, too), administrative, professional, and computer professional tests. To be exempt, you must meet one or more of these tests while being paid a large-enough salary, too.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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