Is it legal for a salary non-exempt employee to receive half pay for overtime pay vs. time and a half?

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Is it legal for a salary non-exempt employee to receive half pay for overtime pay vs. time and a half?

The employee does not have a fluctuating work week agreement and is required to work a minimum of 40 hours per week. For example, leaving work 1 hour early for an appointment would require making up the time during the week because only working 39 hours is unacceptable. The employee is scheduled for 8 hours per day with a 30 minute lunch. A 1 hour lunch is okay, as long as an additional 30 minutes are worked before or after the employee’s regular scheduled time and at the end of the week the hours are at least 40. If the employee works 45 hours in that week, the 5 extra hours are paid at a rate of half the regular hourly rate.

Asked on January 28, 2016 under Employment Labor Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

That is correct. If a salaried employee is not exempt from overtime, then when he/she works more than 40 hours in a week, he or she receives, for each hour over 40, additional pay equal to 50% of his or her effectively hourly base pay. Remember: there is no need to pay a salaried employee, even a non-exempt one, additional base pay for working extra hours: the salary is all the base pay he or she gets, no matter the hours. Being non-exempt, though, he or she gets the additional overtime portion (the extra 50%) for the hours over 40. So, to simplify the example, pretend there are only 50 weeks in a year. Assume the employee makes $20,000/year salary, or $400 per week, which is equivalent to $10 per hour (40 hour basis). If he or she works 45 hours, he or she get his or her $400 salary for the week, which covers all base pay, and an extra $10/hour for the extra 5 hours, or an extra $25.


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