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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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If someone is salaried / non exempt and get paid $500 40

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If someone is salaried / non exempt and get paid $500 for working 40 hours -- and they work 35 hours one week and 45 hours another week. Should I dock their pay for week in which they worked 35 hours? Should I pay them overtime for week in which they worked 45 hours (5 hours OT)?
Also must I pay salaried non-exempt employees for quick breaks during the day such as to smoke?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

There is really no reason to be paying a non-exempt employee a salary. It does not make sense to do so because you are still liable to pay overtime if the non-exempt employees works more than 40 hours, which means you need to keep track of all their hours in order to know if they are entitled to overtime. If you have to keep track of all their hours, you might as well pay them hourly. Otherwise, you either wind up paying them more than what you intended if they work less than they were supposed to, or if you deduct from their wages if they work less than they were supposed to (as you are wanting to do here) you are essentially paying them "hourly" anyway since their wage is a function of how many hours they worked. It just does not make any sense to jump through those hoops when you can just pay by the hour.

The above noted, if the employee is non-exempt, you can typically deduct a pro rata share of the employee's salary for the hours less than their ordinarily scheduled ours that they work. (i.e. in your case you could deduct 1/8 of the employee's salary which would be $62.50). Ideally you would want a contract or handbook policy specifically permitting this deduction, as the employee might otherwise argue that they were implicitly promised their entire salary regardless of the number of hours worked.

As noted above, you need to pay a non-exempt employee overtime, even if they are "salaried," for hours worked in excess of 40 per week. You are not required to provide breaks, but if you do, the FLSA mandates that they are paid unless they are 20 minutes or longer.

I hope that you find this information helpful. 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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

Expert:  Patrick, Esq. replied 1 year ago.

Were you able to view my response? Please let me know if I can be of any further assistance to you....