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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 19319
Experience:  Employment/Labor Law Litigation
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I am in NC an I have a employee that worked over 40 hours.

Customer Question

I am in NC an I have a employee that worked over 40 hours. Her regular pay is $15.00 an hour. She sets her own schedule and also the schedule of 3 employees beneath her. She has never worked over 40 hours per week and was not authorized to work over 40 hours a week. She turns in her own hours and does not punch in a clock or anything. We do not have anything that addresses over time in the employee manual one way or the other. We paid her the regular pay for the hours she worked over 40 in a week. She is now wanting to know why she did not received time and a half. Do we need to pay her time and a half? I have read the Labor laws and I do not fully understand whether she is exempt or non-exempt.
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: NC
JA: Have you talked to a lawyer yet?
Customer: not yet
JA: Anything else you think the lawyer should know?
Customer: that is all right now
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Employment Lawyer about your situation and then connect you two.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

If you don't know if she is salaried exempt, she's not salaried exempt. You would have established her as a salaried employee, noting that she would receive the same amount of pay regardless of the number of hours she worked in a day (meaning she'd get her full salary even if she worked one hour in a day).

Additionally, she does not receive sufficient pay to be legally considered a salaried exempt employee under current law and you have her pay set by the hour, not in a weekly salary.

She is an hourly employee then and is legally required to be paid overtime when she works more than 40 hours in a week, even if you did not authorize it. You have other means to keep her from working overtime, such as reducing her hours the following week to make up the difference (she works and is paid less) or other disciplinary actions if she continues to not follow rules you set about overtime. However, once she has worked it, authorized or not, it must be paid at time and a half.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

Customer: replied 1 year ago.
when you say reduce her hours the following week to make up the difference - do you mean in a 80 hour 2 week period - if she worked say 49 hours 1 week we can make her only work 31 the following and avoid overtime pay?
Expert:  Allen M., Esq. replied 1 year ago.

No, that's not what I mean. Overtime is done on a 7 day weekly period. You don't get to use a two week pay period to avoid overtime.

You have to pay the overtime and you can't legally get around that.

What I mean is that you can "punish" her, by suspending her the next week for a day and then she'll lose out on the pay for that week. You'll also lose out on her work, but that's the choice you have either pay overtime when it is worked and move on, or take steps to make sure your employees know that working overtime without permission is grounds for disciplinary actions (like a suspension) or even termination.

Expert:  Allen M., Esq. replied 1 year ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.