What to do if I believe my wife is being exploited by her employer stating that she is salary but she does not meet the “exempt” provisions?

UPDATED: Mar 22, 2012

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What to do if I believe my wife is being exploited by her employer stating that she is salary but she does not meet the “exempt” provisions?

My wife works as a assistant manager. She being paid “salary” but her paycheck shows that it is the equivalent of her hourly wage for 40 hours of work. She is being scheduled for 40 hours but forced to work 60 hours per week. They just told her she needs to work 6 days a week, which would bring it to 72 hours per week. This doesn’t sound legal to me.

Asked on March 22, 2012 under Employment Labor Law, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You can be salaried, but still not be exempt--i.e. some salaried personnel are eligible for overtime.

To be exempt from overtime, an employee must be paid on a salaried basis and she must also meet one or more of the tests to be considered exempt. These tests are based on the nature of her duties and authority, and can be found on the Department of Labor website. For an assistant manager, the main ones to consider would be the "executive" exemption (which should really be called the "managerial" exemption--it does not apply only to executives) and the administrative exemption. You and your wife should look up these tests and compare them to her duties and responsibility.

Again, it is legal to pay a non-exempt employee on a salary basis; if someone is nonexempt but salaried, she is owed additional compensation for hours worked past 40 in a workweek. It can be difficult to figure out overtime for a salaried but nonexempt employee, so if you think this might be the case, you and your wife should consult with an employment law attorney. The lawyer can help you understand if your wife is in fact owed overtime, and how much, and then help you take legal action, if appropriate.

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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