Thank you for using JustAnswer. I am researching your issue and will respond shortly.
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.
Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).