Paying an exempt employee overtime

Christine

I have an exempt employee (still classified as exempt) but who began to receive overtime in July, 2000. I don't think the overtime was authorized by the department director. I believe the employee is still legally classified as exempt.

The employee is now asking for payment of overtime hours worked prior to July, 2000. What is your opinion on this matter. 1) If the overtime WAS authorized, do we have a legal obligation to pay the overtime prior to July, 2000, even though he is classified as exempt and meets the tests for exempt status? 2) If the overtime was not authorized (which I don't think it was) can we admit we made a mistake and put the employee on notice that he is an exempt employee not eligible for overtime?

I'm new to this organization and there is very little documentation files.

What would you do in this case (I will be seeking the advice of an attorney)?

dhnyct

If employee is truly exempt, where did the term overtime come from in the first place? We lucky exempt people are expected to put in more than 40 hours as necessary...whatever it takes to get the job done. If exempt employee truly goes above and beyond, how about a special bonus?

At this point it sounds like your situation could be bordering on a real problem, depending on the employee and his/her perceptions. Any chance of negotiating back to exempt pay status??

smarti

The first thing I would do is look to the trigger point which may have changed the exempt status to non exempt. However, I would suggest you review the FLSA standards for "exempt" to see if the employee meets the tests. In some cases, professionals like "engineers" may in fact receive ot and still remain exempt. You didn't mention what position this employee currently holds or held at the time of change. Lastly, why would payroll pay ot not authorized? Good Luck

DB

Why would an engineer who meets all requirements of a professional exemption still get OT? Is that just a company decision or is it some kind of federal or state requirement?

smarti

The example for "professional engineer","Scientists" "nurses" etc who are primarily exempt may also fall under nonexempt professional is they have work that is secondary to primary work. Example, registered nurses are exempt in our medical clinic and home health divisions, however if they are called upon for home, hospital or other visits to the patient outside of their 40 hours, they may be paid their hourly rate, they may even be deducted for absences of less than a day. Engineers for example in CA working in the aeorspace areas may be called upon to work on secondary designs from primary hours and be paid the hourly rate. the so-called "learned" professions, such as medicine, law, dentistry and others
may fall under an additional exemption. They just can't be paid less than the predetermined wage except in rare cases.

smarti

I neglected to point out standard#311 - section "Hourly pay for exempt employees" clarify's a Wage and Hour Opinion of 7/18/97 from their Field Operations Handbook which may explain how some exempt employees may receive ot. It can be really confusing and controversial. We had an attorney clarify for us in 1991. Good Luck

dhnyct

Payroll does not have the option of not paying OT, even if the OT was not authorized. However, it can be addressed as a disciplinary issue.

Theresa Gegen TX

Sounds like on this one you need to get with an attorney. I have some clients who pay exempt employees (supervisors) premium pay for hours worked over 40 -- this was implemented because no one would agree to become a supervisor because the hourly employees were earning more with OT -- this did not destroy the exempt status (but it was a specific program).

I would say you need to get with an attorney asap to determine the employee's rights -- but at a minimum I would not work the employee more then 40 hours per week until it is resolved (in otherwords - stop the bleeding). If the employee files a DOL charge, you have a good chance of them finding for the employee (after all that is their job)

Good Luck!