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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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I own a business in SC that can be considered a seasonal

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I own a business in SC that can be considered a seasonal business (swimming pool co). Our busy season is the spring & summer. Our business slows down significantly in the winter. We decided to put our employees that we valued on salary positions so that we would guarantee them 40 hrs plus other benefits in the winter so that we wouldn't loose or lay them off. Also so that they would have the security of knowing they could feed their families and pay their bills. However in the busy time they would still only receive the 40 hrs plus other benefits regardless of hours (usually around 50) and at that point we the company would benefit from the non-overtime rate that we couldn't afford to pay them anyway. In most cases it truly evens itself out at the end of the year. In one specific case an employee was overpaid at the end of the year, he came out ahead. That was not a problem for us but the employee who was a Laborer/pool cleaner claims that he is owed money for overtime pay that he was not compensated for. Throughout the year in many occasions he worked much less than 40 hrs but was paid for 40 hrs because he was on salary. So we are now finding out that he is not allowed to be on salary because he would be considered to be a laborer & they have to be paid as an hourly employee. When I ask around to many other employers in my area the responses I get is that none of them pay overtime pay of time in a half, They pay straight pay however many hours the employee works or they have employees on salary positions so it doesn't matter. So to finally get to my question "Can a laborer in SC be a salary employee? and if not is there any exceptions or any exceptions being a seasonal job. Thank you in advance for your expert advice
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.

While any employee can technically be paid on a "salary basis," only those employees with positions that fall within a statutory EXEMPTION from overtime can be paid the same flat salary without regard to the number of hours they work. If a "non-exempt" employee is paid a salary, any hours worked in excess of 40 in a workweek must still be paid as overtime based on the employee's "regular hourly rate" (their weekly salary divided by 40). This is true even if in other weeks the employee works less than a standard 40 hour week. There is no "averaging out" when it comes to overtime--each workweek is looked at by itself.

Overtime exemptions are few and far between. There is one for "managerial" employees who spend the majority of their time exercising managerial discretion over other employees. There is also an exemption for certain "administrative" employees who are primarily responsible for overseeing the general operations of a business and who exercise discretion in such role. However, there is no exemption for laborers or for seasonal employees.

In the future, you can offer a loan or an advance during the slow season to help offset the employees' lack of hours, but unfortunately you cannot do as you did and pay a flat salary to non-exempt employees, then not pay them overtime. Don't get me wrong, from a practical standpoint I completely understand why you did it and it is not inherently unfair--you were trying to do a favor for your workers. But unfortunately good intentions are not a defense to violating overtime law, and so the employee who is claiming overtime does have a legitimate basis for doing so.

I hope that you find this information helpful and am genuinely sorry if it is not what you were hoping to hear. 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.

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