Is an employee exempt from overtime as a service writer?

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Is an employee exempt from overtime as a service writer?

The employee is a service writer at a mechanic shop, not a car dealership, and the employer company is an LLC. If the employee is paid a base hourly rate of $12/hour plus a commission rate of 2 of weekly sales not averaging to 1/2 of the employees wages, is that employ exempt from

overtime pay if they consistently work over 40 hours a week? Is an employer allowed to dock said employees

pay if they work less than 40 hours a week but do not report the overtime hours? If said employee is paid their $12/hour base pay rate for 48 hours plus the 2 commission, is the employer required to pay the employee

for the 8 hours at the overtime rate?

Asked on June 15, 2018 under Employment Labor Law, Kentucky

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If the employee is paid a base *hourly* rate (not an annual salary) and the employer docks pay if they work fewer hours, then the employee is, from the law's point of view, an hourly employee. If he is hourly, he MUST be paid overtime when he works more than  40 hours per week: all time over 40 hours is paid at the overtime rate of time-and-a-half. While there are other requirements (based on the nature of the job) to be exempt from overtime, the first and most basic requirement is the employee must be paid an annually salary, not wages based on hours worked. If you are not salaried--and if the employer alters pay based on hours worked, you are not salaried--you are not exempt and you must be paid overtime.


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