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legalgems, Lawyer
Category: Employment Law
Satisfied Customers: 9908
Experience:  Just Answer consultant at Self employed
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If a automotive is paid on a flat rate basis is he exempt

Customer Question

If a automotive is paid on a flat rate basis is he exempt from overtime pay
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: the word painter should follow automotive...this is NC
JA: Is the employment agreement "at will," union, full time or part time?
Customer: at will, and full time. I can explain flat rate if u r not familiar
JA: Anything else you want the lawyer to know before I connect you?
Customer: no thanks
Submitted: 9 months ago.
Category: Employment Law
Expert:  legalgems replied 9 months ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Customer: replied 9 months ago.
Expert:  legalgems replied 9 months ago.

Thanks for your patience;

an employer cannot use a flat rate basis to exempt a nonexempt employee from overtime.

Basically, the employer will take the hours worked that week (each work week is a separate week) and divide it by 40; any hours above 40 must be paid 1.5 times the regular rate.

If the employee is exempt, or is actually an independent contractor, then they do not need to be paid overtime.

There is a narrow exemption under section 7i of the FLSA which exempts certain employees that are incentive based, and the following requirements must be met:

1) The employee must be employed by a retail or service establishment;

2) The employee’s regular rate of pay must exceed one and one half times the applicable minimum wage under FLSA section 6; and

3) More than half of the employee’s total earnings in a representative period must consist of commissions on goods or services.

See 29 C.F.R. §§ 779.313-.324, 779.410-.420

Links to minimum wage, overtime wages, exempt/nonexempt/independent contractor information are below:






#6 - this has the flat fee exception

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Expert:  legalgems replied 9 months ago.

Hello again; just checking in to see how things worked out;
if you have further questions please don't hesitate to reach out to me here on Just Answer.