Can Salaried Workers Get Paid Over Time? | Blog | Aiman-Smith & Marcy
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Can Salaried Workers Get Paid Over Time?

Most folks are familiar with the concept of overtime pay. The Department of Labor stipulates that people who are not exempt must be paid not less than the usual rate plus 50% of that rate when they work more than 40 hours in seven consecutive days. (The workweek can start at any time.)

The State of California says that you should be paid this overtime if you work anything over eight hours a day or more than 6 days in a workweek. Your wage doubles when you work in excess of 12 hours in a day or for more than 7 consecutive days, unless you are classified as exempt.

But the big question is: what do they mean by exempt? Some people assume that it is based on whether you received a salary or hourly wages, since when you get a salary, you are paid the same amount for a week no matter how many hours you work.

This isn’t the case at all. Your exemption has nothing to do with how your pay is calculated or your job title. It does have something to do with your industry, your job duties, how much you make, and how much autonomy you have in your job. 

Signs That You Are A Non-Exempt Worker:

So, let’s break down the signs of a salaried worker who should be paid overtime according to the DOL fact sheet. If you have these signs, you should be classified as non-exempt and qualify as overtime.

  • You are paid less than $684 a week, unless you are an outside sales employee, a teacher, or practicing law or medicine. An outside sales employee makes sales at a customer’s home or business under federal rules. California sets this minimum salary amount as twice the minimum wage for full time employment. Your employer gets to include nondiscretionary bonuses, commissions, and other types of incentives for up to 10% of the $684-a-week requirement according to the federal rules.  
  • You don’t manage a business or a department in a business, and you don’t direct the work of more than 2 full-time employees.
  • You lack the power to hire or fire, and lack any real input on personnel decisions.
  • You don’t do any office work that is important to running the business, and you don’t regularly exercise your own judgment in important matters at work.
  • You aren’t classified as a ‘professional’- your work doesn’t require an advanced degree or specialized knowledge.
  • You aren’t a ‘creative’ with a lot of discretion over work and working hours. People who work in fields that are traditionally considered creative or artistic endeavors can be paid on a fee basis. A fee that amounts to $684 if they worked 40 hours a week based on the set fee for a single job can’t get overtime.
  • In California, you don’t do any of the above types of work (office work, managing, exercise significant judgment, do things that need creativity, and professional knowledge) for more than 50% of the work day. 
  • You’re not performing the duties of a high-level computer professional, for instance a systems analysis or software design.

If you were hired with a salary for a workweek that is longer than 40 hours, you still get overtime pay. Your employer has to divide your salary by the agreed amount of hours to find your wage and pay you time and a half based on that.

What To Do When You Are Non-Exempt But Your Employer Says That You Are Exempt

If you can check off the above signs, then you should be getting paid overtime. However, employers sometimes misclassify employees, and this means that you get much less than you deserve. You may, in this instance, want to contact a lawyer that specializes in employment law for advice. Fortunately, Aiman-Smith & Marcy is a small-medium law firm that has experts in just this area. Feel free to contact us if you want to know more.