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Can a Salaried Employee get paid on a per day basis or do…

Can a Salaried Employee get...
Can a Salaried Employee get paid on a per day basis or do they have to be paid only on a weekly basis? If it posted anywhere please let me know. Thank you.State: NY
City: NYC
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Answered in 4 minutes by:
10/13/2017
Patrick, Esq.
Category: Employment Law
Satisfied Customers: 13,577
Experience: Significant experience in all areas of employment law.
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Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

The law permits employers to pay employees in whatever manner the employer chooses, provided the employee receives at least minimum wage plus applicable overtime for all hours worked. So, there is nothing inherently illegal about paying a flat daily rate. By definition this is not a "salary" because a salary by definition is the same flat rate of pay regardless of how much work is performed over the pay period. What you are describing is a per diem rate, and it's legal provided the per diem rate equals or exceeds minimum wage plus applicable overtime for all hours worked. Of course, in order to know with certainty whether there is compliance in this regard, it would be necessary to keep track of all the employee's hours. And if you're going to do that it makes much more sense to just pay them hourly, which is why you rarely see this sort of "per diem" rate utilized. It makes no sense for the employer because they spend the same amount of time and effort keeping track of hours only to get stuck paying the same flat daily rate regardless of how much hours are actually worked.

It's necessary to keep track of hours and overtime when paying per diem because, since such a compensation structure is not a true salary, the position would not satisfy any of the statutory exemptions for "salaried exempt" employees.

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.

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Customer reply replied 4 months ago
is Per Diem Rate suitable for everyone? Lets say an employee get $300 dollars a day, does that mean even if the employee works 1 hour it would mean we have to pay them $300?

Precisely. Which further illustrates why it makes no sense to pay a per diem rate. It's the worst of both worlds for the employer. They have to keep track of all the employee's hours, and they STILL have to pay the full rate even if the full hours aren't worked.

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Customer reply replied 4 months ago
Let's say I want to pay a chef per diem rate. Would this be acceptable?

It's acceptable, but it does not make sense. Since you already have to keep track of their hours (this is a requirement for per diem rates because otherwise you cannot prove you are complying with minimum wage and overtime laws) then why not just pay them by the hour? You are only shortchanging yourself by paying a per diem. You can do it, but it makes no practical sense and this is why it is rarely ever done.

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Again if there is anything more I can do for you just let me know. It's my pleasure....

Patrick, Esq.
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