All nonexempt workers who fall under the rules established by the U.S. Fair Labor Standards Act (FLSA) must receive a minimum wage of not less than $7.25 per hour, as of 2017. If these workers put in more than 40 hours in any given workweek, they must also receive overtime pay. This should be at least one and one-half times their regular hourly wage for every hour over the 40th.

However, who gets overtime pay is not always clear-cut. Determining whether you are entitled to overtime pay if you are a salaried employee is often more complicated than it should be. Employment lawyer Phil Gibbons can help you determine whether your employer owes you overtime pay.

Call our office today at 704-612-0038 to schedule a time to discuss your case with employment lawyer Phil Gibbons. We offer free case reviews and will handle your case on a contingency basis. This means you owe us nothing unless we recover unpaid wages for you.

Am I a Non-Exempt Employee, and How Does that Affect Overtime Wages?

Only non-exempt employees receive overtime pay. Some people believe being paid a salary instead of an hourly wage means they are automatically exempt employees and not eligible for overtime. However, this is not the case. Employees who receive a guaranteed salary of more than $455 each week may be exempt, but they must meet other qualifications as outlined in the Code of Federal Regulations (CFR) 541.

If you are covered under the FLSA and make less than $455 in salary each week or do not meet other qualifications to be an exempt employee, your employer must pay you time and one-half for any hours you work over 40 each week. There are two ways your employer can handle this, depending on how it schedules your hours. If it fails to pay you for overtime, you can file a claim to recover your unpaid overtime wages. 

How Should My Employer Calculate My Overtime if I Have a Steady Schedule?

Most employers expect their non-exempt, salaried employees to work 40 hours a week, on a set schedule. When they work more than those set 40 hours, employers must pay them time and a half for their overtime.

They would calculate this by dividing the employee’s normal salary by 40. This gives them the employee’s hourly wage. Then, they would need to multiply this by 1.5 to get the time and a half wage. The hourly wage applies to the first 40 hours, and then the overtime (time and a half) wage applies to any additional hours. 

For example, let us assume a non-exempt employee makes a salary of $800 per week. This employee, who usually works 40 hours, works 44 hours one week. The employer would need to calculate the regular rate of pay by dividing 800 by 40, which gives a regular wage of $20 per hour. Then, it would need to multiply $20 by 1.5, equaling $30. This is the overtime wage. The employee’s check should include $800 in regular wages and an additional $120 for the four hours of overtime, totaling $920.

How Should My Employer Calculate My Overtime if I Have a Fluctuating Workweek?

It is somewhat more difficult to calculate overtime if you have a fluctuating work schedule, but your employer is still responsible for understanding the law and paying you accordingly. This type of schedule is common for those who may work a lot during one time of year — summer, for example — and fewer hours the rest of the year.

With a fluctuating workweek, employees may work 50-hour weeks for part of the year and 30 hours a week for the remainder. This makes it difficult to do the math to determine an hourly wage. It is important to note employers cannot use this method to calculate overtime unless they meet certain conditions:

  • The employee has a guaranteed salary each week;
  • The employee’s hours must vary each week; and
  • The employee must receive an hourly rate of at least minimum wage, no matter how many hours he works

To calculate overtime pay when an employee has a fluctuating workweek, the employer must divide the salary by the total hours worked that week, and then multiply the resulting hourly wage by no less than .5 to get the remainder of their overtime wage.

It is important to note employers must pay their employees at least minimum wage. Since this calculation decreases the hourly wages as hours worked increases, there is a limit to how many hours the employee can work and remain above minimum wage. We can help you understand how much your employer owes you if this occurred in your case.

Here is an example of a fluctuating workweek overtime pay calculation: you receive a guaranteed salary of $800 per week and you worked 50 hours last week. Your hourly wage for that week is $16 ($800 divided by 50). To get your overtime pay, your employer would need to multiply your hourly wage by at least .5 to get the remainder of your overtime wages. This would give you $8. You should receive $880 ($800 regular pay plus $80 in overtime wages).

Phil Gibbons, Charlotte, NC Employee Rights Lawyer, Can Help Salaried Employees Recover Unpaid Wages.

Understanding your rights under the FLSA and state overtime laws is difficult, and the overtime pay calculations necessary to determine the proper rate of overtime pay for non-exempt, salaried employees are complex. However, you do not need to handle this alone.

Gibbons Law Group can help you understand if you have unpaid overtime wages, and help you recover them. Call us today at 704-612-0038 to schedule your free consultation.