Can your employer dock you if you work less than the required time but if you work more than that not pay you overtime?

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Can your employer dock you if you work less than the required time but if you work more than that not pay you overtime?

My employer states that we are salaried employees but he keeps track of our hours and makes us punch in and out on a timeclock to keep track of these hours. If we are as much as 30 minutes short of our 80 hours, our pay is docked but no overtime is ever paid.

Asked on April 2, 2012 under Employment Labor Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

1) Salaried employees may not be docked pay when they miss less than a day of work; if they are, then they lose their salaried treatment and are considered hourly employees, which has implications for overtime (see below). If a salaried employee misses whole days at time, he does not have to be paid for the full days he missed; and if an employee is late, tardy, etc., an employer is free to fire him or her, salaried or not--but again, what they can't do is take minutes or hours of pay away from salaried staff.

2) If you are or must be treated as hourly staff, you must be paid overtime for all hours worked past 40 in a workweek.

3) Even if you are salaried, you may still be eligible for overtime. To be exempt from overtime (i.e. to not receive it), you must be paid on a salary basis and you must also meet one or more of the tests to be considered exempt--being paid a salary, by itself, if not enough. You can find these tests, which are based on your job duties, at the U.S. Department of Labor Website; the most common exemptions are the administrative, executive (which could apply to any manager, not just an "executive"), professional, and (in a store) retail sales staff.

If you do not meet the criteria for an exemption, you must be paid overtime, or extra compensation when working more than 40 hours in a week, even if salaried.

From what you write, your employer may be violating the labor laws. You should consult with an employment law attorney. Note if that if you have had pay improperly docked for weeks or months (or longer) and also have not been paid overtime to which you were entitled, you may have a considerable cause of action.


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