Employment Law Questions? Ask an Employment Lawyer.
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Generally speaking, no. First of all, to be paid as exempt (not getting overtime) you would have to be paid on a salary basis, which means that if you work any portion of a day, you get paid for the entire day. You cannot have hours docked. You have to make at least $455 per week to be considered salaried.
Furthermore, while the employer may change you from salaried to hourly, this cannot be done during the pay period.
The employer would have to give you notice before you started work in a specific pay period as to whether you would be salaried or hourly.
So while it is possible to switch you back and forth between salary and hourly, it has to be in discrete pay periods, and you have to have notice before they do so.
And you would need to specifically be a bona fide executive, administrative, or professional capacity or in the capacity of outside salesman. An employee who meets the duties tests for the executive exemption must be paid on a salary basis of at least $455 per week. An employee who meets the duties tests for the administrative or professional exemption must be paid on a salary or fee basis of at least $455 per week. An employee in certain computer-related occupations who meets the duties tests may be paid either on a salary or fee basis of at least $455 per week or on an hourly basis of at least $27.63 for each hour worked.
To the extent that you're being changed during the day or week, or that you're not an executive, administrative or professional individual, or are not paid $455 a week, you can't be exempt, and need to be paid on an hourly basis.
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