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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 19179
Experience:  Employment/Labor Law Litigation
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I have 3 employees for a pest control company. I keep them

Customer Question

I have 3 employees for a pest control company. I keep them on a schedule that i pay them for 8 hours worked per day everyday they work even if they don't work the entire day (in many cases they just work 3-5 hours and still get paid for 8). If they work more than the 8 hours i pay them their normal hourly rate for the additional time worked. Some work saturdays as well which they get paid their normal hourly rate. do i need to pay overtime? Should i be calculating their hours worked differently? the point of it is that if work is slow i don't want them to have to worry about money but when it's busy they make more anyways...
Submitted: 10 months ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 10 months 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.

Yes, you need to pay them overtime when they work more than 40 hours in a week. The job that these people have does not meet the "salaried exempt" status, because they are not managers, professionals (doctors, pharmacists) or executives.

Now, that doesn't mean they can't be paid a salary, as you appear to be doing. It just means that they are salaried non-exempt, which is really a very difficult method of payment to keep track of.

You'd have to pay them a base salary for all the hours they work in a week, regardless of what those hours are. You'd have to then keep track of the total number of hours a week they actually work. If they work 40 or less, you just pay them the salary.

If they work more than the 40, you then have to do some calculation. Let's use $1000 a week for math purposes and say they worked 50 hours.

Well, the 50 hours base is covered by the salary. You'd then need to figure out what the "half" (as part of the time and half) would be by dividing $1000 by 50, getting $20 and half of that is $10. So, you'd have to pay them an additional $10 per hour over 50 in that situation, or $100 to cover the overtime requirement.

But that's not always the same. Take the same scenario, but they work 45 hours. The 45 hours is again covered by the base salary and you have to figure out the total hourly rate to come up with the "half" premium. 1000 divided by 45 is $22.23, half of which is $11.12. So, they'd get their base plus and additional 5 times $11.12.

As you can see, it can be a mathematical nightmare. The easier thing is to just pay them a straight hourly rate and if they work less than the 40, they get paid less. If they work more than the 40, they get paid more (time and a half for those hours). It is the simplest and fairest method of payment, because they only get paid for what they actually work.

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 three, a four or preferably a five star 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.

Expert:  Allen M., Esq. replied 10 months ago.

Now, nothing in the law says you can't pay them their full hourly rate when things are slow. That's a personal choice and doesn't cause issues legally.

However, you must pay them something that is actual overtime for hours over 40 in a week (and this only counts actual hours worked...not hours they may have been paid for even though they didn't work). So, if you choose to pay them hours they aren't working, you should track it differently in the payroll so that it is clear they are not working, so it doesn't count against the overtime clock.

Expert:  Allen M., Esq. replied 10 months 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.