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I have a salaried employee who works well over 40 hrs a week…

Customer Question
Hi, I have a...

Hi, I have a salaried employee who works well over 40 hrs a week as we have had several personnel changes that left two major departments in need of directing which he has stepped in and took on. Am I able to pay him overtime being salaried? I was thinking of paying a retention bonus but I know the tax implication might leave the gesture worthless. This is San Francisco based employee by the way

Lawyer's Assistant: Have you discussed this wage-and-hour issue with your HR staff? Or with a lawyer?

No I'm a small box owner just trying to come to an efficient solution

Lawyer's Assistant: Is your employee "at will?" Does the employee belong to a union?

*business owner No union And yes

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

This employee is here on a work visa from Finland if that matters any

Submitted: 3 months ago.Category: Employment Law
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Answered in 1 minute by:
3/23/2018
Employment Lawyer: Legal Eagle, Lawyer replied 3 months ago
Legal Eagle
Legal Eagle, Lawyer
Category: Employment Law
Satisfied Customers: 12,330
Experience: Licensed to practice before state and federal court
Verified

Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating (click here for more info) so all that means is that you can count on me to help today. Because I want to provide you with the most accurate answer possible, do you mind if I take a moment to review your question?

Please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only.

Ask Your Own Employment Law Question
Employment Lawyer: Legal Eagle, Lawyer replied 3 months ago

Thanks very much for your patience.

So, the Fair Labor Standards Act (FLSA) requires that employees are paid a minimum wage and overtime pay; however, Section 13(a)(1) of the FLSA has an exemption to the minimum wage and overtime pay if an employee is employed as bona fide executive, administrative, professional and outside sales employees.

To be exempted, the employees must meet certain criteria including:

  1. Their job duties must be consistent with that of an executive, administrative professional, or an outside sales employee; and

  2. They must earn more than $455 per week

What this essentially means is that if a person is CEO, an administrative assistant, a customer service representative, and they get paid less than $455 per week, they’re entitled to overtime and a minimum wage. Some states don’t set their own rules regarding overtime and others do. To check on your specific state, you’ll want to click here.

In your case, you would need to pay him overtime even if he is salaried if he makes less than $455 per week or is not considered one of the professionals listed above.

Thus, you could choose to pay him overtime if this is something you would like, but it's not required. If you pay him more, just make sure that you include it as additional compensation or a bonus, if he is not otherwise eligible for overtime.

Did you have any other questions for me today that I could help you with?

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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