If my husband’s company is a subcontractor and bills the contactor for overtime hours, should he be getting paid overtime?

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If my husband’s company is a subcontractor and bills the contactor for overtime hours, should he be getting paid overtime?

My fiance works for a company that oversees the “hubs” for a cable company are in proper working order and any problems that may arise. He is salary, $60,000 per year, and puts in anywhere from 65 to 80 hours a week. He is on call at all times and has to be able to reach a site within 2 hours. His company is saying that he, and his fellow workers or exempt from overtime but just found out that they are charging the cable company for all hours they work, overtime but not giving they money to the employees. Would they be exempt? What, if anything, can be done?

Asked on February 8, 2016 under Employment Labor Law, North Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

How the subcontractor charges the contractor and how much they charge is irrelevant: all that matters is whether, based on how he is paid, your husband is exempt from overtime or not. Being paid a salary is *part* of being exampt, but it's not the whole story--there are salaried employees who are not exempt and who get extra pay when working more than 40 hours in a week. To be exempt, not only must you be paid on a salaried basis, but you also must meet one or more of the "tests" for exemption. These tests are based upon your job duties, and you can find them on the U.S. Dept. of Labor website. Look them up, especially the "executive" (which really should be "manager"), professional, and administrative employee tests and compare them to what your husband does. If he does not meet one or more tests, he maay be owed overtime when he works more than 40 hours in a week, and may have the basis for either a wage-and-hour claim made to the state or federal department of labor, or a lawsuit for unpaid overtime.


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