What to do if our company is paying me salary and no overtime but work us way over 8 hours a day?

UPDATED: Oct 3, 2012

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What to do if our company is paying me salary and no overtime but work us way over 8 hours a day?

Is this some kind of way of cheating on taxes if they are not paying us overtime and calling us salary but reporting us as hourly employees? Is this a way not to pay as much in taxes and insurance?

Asked on October 3, 2012 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

The issue is whether you are in fact paid on on a salary basis and also exempt from overtime. If  you are paid on an salary, as opposed to hourly, basis, you may be exempt from overtime. However, to be exempt, it's not enough to be paid on a salary basis: your job duties or responsibilities must also meet one or more of the tests for overtime exemption. You can find these tests at the U.S. Department of Labor's website; you should look them up and apply them to your job. The main tests to consider are the administrative employee exemption, the executive (which should be called the managerial) employee exemption, and the professional (learned, creative, and computer) employee exemtions; there are also some exemptions related to sales (not marketing) staff. If you are paid a salary and meet one or more of the tests, then you can be made to work any number of hours without overtime or additional compensation.

But, if you are either actually paid on an hourly basis or you are paid a salary but do not meet a test for exemption, you must be paid overtime when applicable (e.g. working more than 40 hours a week; working more than 8 hours a day, in California). If that's the case, you could either contact the state department of labor to file a complaint, or speak with an employment law attorney about bringing a legal action.

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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