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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1736
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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can you pay a part time employee a salary?

Customer Question

can you pay a part time employee a salary?
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 11 months ago.

Employment-LawExpert :

Hello and thank you for your question today.

Employment-LawExpert :

Are you online with me?

Customer:

yes

Employment-LawExpert :

Welcome to the chat

Employment-LawExpert :

The short answer is that you can absolutely pay an employee a salary, however, you need to be careful of a couple of things.

Customer:

thanks

Employment-LawExpert :

Are you trying to argue that this employee is exempt? or a non-exempt salaried employee?

Customer:

I don't know. We want to hire her, but she will only be working 20hrs/week. We want to give her a base salary of $23,000, plus bonuses if she has admissions. I am not sure how to classify her.

Customer:

Per our policy, we only classify by Full Time or PRN (Per requested Need), so I am not sure how to classify her.

Employment-LawExpert :

So a salaried employee gets a particular amount of money, regardless of how many hours she works. However, if she was to work more hours than if she was to be getting paid minimum wage, you would end up having to owe this person overtime pay.

Employment-LawExpert :

As an exempt employee, you have to actually qualify as an exempt employee.

Employment-LawExpert :

In this instance, you would look at the total control you have over the employee.

Employment-LawExpert :

Would this person be considered an administrative, professional, or an outside salesperson?

Employment-LawExpert :

As a salaried employee, she would be paid a salary for any week she works regardless of how much time she works.

Employment-LawExpert :

From what you have said, it sounds like she must be classified as a non-exempt salaried employee

Employment-LawExpert :

However, you should know that in this situation, if she was ever to work overtime, she must be paid that overtime.

Employment-LawExpert :

In SC, overtime exists once she has worked over 40 hours in a week.

Employment-LawExpert :

You would also be subject to normal meal and rest breaks that you had established within the company. While you are not required to provide this, if you do, you must provide it uniformly.

Employment-LawExpert :

Does all of this make sense?

Employment-LawExpert :

If you want to try to argue that this employee is exempt, you must raise the salary and be subject to a few guidelines.

Employment-LawExpert :

More about this can be found here:

Employment-LawExpert :

http://www.dol.gov/whd/regs/compliance/fairpay/fs17g_salary.htm

Employment-LawExpert :

So, in short, you will pay this person as a salaried non exempt employee. An employee who “receive[s] his full salary for any week in which he performs any work without regard to the number of days or hours worked …” is considered paid on a salary basis, according to U.S. Department of Labor regulations. This person would still be subject to the FLSA requirements however

Employment-LawExpert :

Just keep in mind that an arrangement such as this is really only beneficial to the employee, and not to you.

Customer:

if we classify her as salaried non-exempt, do we have to offer her health insurance benefits?

Employment-LawExpert :

Do you have more than 50 full time employees?

Customer:

yes

Employment-LawExpert :

So, currently, you have to offer all classified employees the same benefits.

Employment-LawExpert :

However, starting in 2014, and completely in 2015, you will be subject to the new Obama care laws (the employer shared responsibility laws)

Employment-LawExpert :

So, now, if you classify her as a part time employee and other part time employees do not receive benefits, then she would have to receive benefits. If you classify her as a non-exempt salaried employee, and all other non-exempt salaried employee receive benefits then she would also receive benefits

Employment-LawExpert :

Does that make sense?

Customer:

yes, but we have not classified anyone as a salaried non-exempt in our company before. So then can we classify her as such and not offer her benefits?

Employment-LawExpert :

Correct. Until the start of the new year

Customer:

Ok, thanks so much!

Employment-LawExpert :

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Employment-LawExpert :

Have a wonderful rest of your day.

Customer:

Thanks

Brandon, Esq., Lawyer
Satisfied Customers: 1736
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and other California Employment Law Specialists are ready to help you

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