What can I do if my new hire paperwork states that I am a salaried exempt employee but my employer will not pay me the agreed salary amount if I work less than 40 hours a week?

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What can I do if my new hire paperwork states that I am a salaried exempt employee but my employer will not pay me the agreed salary amount if I work less than 40 hours a week?

They also will not pay me over time should I work more than 4 hours. How can this be legal?

Asked on February 5, 2016 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Unless the new hire paperwork is an actual employment contract, it is not binding, so the employer could change how you are paid (e.g. salaried vs. hourly) at will and/or the amount you are paid. That said, they have to pick one and go with it:
a) If you are salaried exempt--and to truly be exempt, not only must you be salaried (not hourly), but you also must meet the legal tests for exemption; you can find them on the U.S Dept. of Labor website--then you should be paid your full salary even if your hours are short; they would not need to pay overtime.
b) If you are hourly, they can reduce you pay when you miss hours, but must pay overtime if you work more than 40 hours in a week.
So you can be hourly or you can be salaried (and be exempt if you meet the tests), but you can't be both: either pay you overtime as applicable, or else pay you your full weekly salary when hours are short.
If the company doesn't do the above, they are violating the wage and hour laws (e.g. the Fair Labor Standards Act, or FLSA) and you could file a wage-and-hour complaint with the state or federal Dept. of Labor, or else speak with a private attorney about possibly suing.


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