Help Wanted: Qualifying for overtime pay

In New York State, hourly, or nonexempt, workers

In New York State, hourly, or nonexempt, workers can be salaried, but they must be paid for every hour they work and must earn overtime when they work more than 40 hours in a work week.

DEAR CARRIE: I am trying to find the Labor Department's rules for salaried employees. The company I work for considers me a salaried employee, and as a result I am not paid overtime or even comp time. I am not a manager. I have searched the Labor Department's website for rules regarding salaried employees, but I cannot find the information I need. Can you direct me to the correct information about this topic? -- O.T. Confusion

DEAR O.T.: I'll not only direct you to helpful information online, but I'll answer your question here as well.

Being salaried doesn't by itself determine whether you qualify for overtime. So if your employer is using that as the only factor to decide your status, it may have misclassified you as exempt from overtime. Hourly, or nonexempt workers, can be salaried, but they must be paid for every hour they work and must earn overtime pay when they work more than 40 hours in a workweek.


MORE. Read more about overtime pay and exemptions.

              For more on pay perks and benefits.


"There's no requirement [under federal labor law] that nonexempt workers must be paid hourly vs. by salary," said Irv Miljoner, who heads the Long Island office of the U.S. Labor Department.

"However, in either case, non-exempts must be paid at least the equivalent of the minimum wage for all hours worked, and time-and-a-half their regular rate for hours worked over 40 in a week."

Your duties ultimately establish whether you qualify for overtime. Workers who are exempt from overtime fall into four categories. You have already alluded to one of them, executive, or the category that includes managers. Bona fide managers are exempt from overtime and even minimum wage. The other exempt categories are administrative, professional and outside sales. Whether workers fall into an exempt category depends on their duties.

"In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the department's regulations," according to the Labor Department's website.

To be considered a manager an employee must primarily manage during the work day; supervise at least two full-time employees; have the authority to hire or fire or have some input in the process. And the manager must make at least $455 a week. People who fall into the professional category have jobs that generally require a college degree and perform work that is predominately intellectual.

Those two examples illustrate how the salary question takes a backseat to duties in determining an employee's status.

By the way, if you work in the private sector, your employer doesn't have the option of substituting compensatory days for overtime pay. You have to be paid, not given comp days, to cover your overtime hours.

For more on the overtime exemptions, go to the Help Wanted column at Newsday.com and click on the accompanying link to a U.S. Department of Labor fact sheet.

DEAR CARRIE: I am a school secretary, and I plan to retire next year. My annual salary includes a longevity payment and a stipend. I have accumulated vacation days that will be paid out when I retire. My school district is telling me that those days will be paid at a rate that does not include my longevity and stipend amounts -- in other words, just my base-salary hourly rate. Is this legal? -- Legally Short-Changed?

DEAR LEGALLY: Since those days are fringe benefits and since companies aren't required to offer benefits, they can set terms for what they offer. If your company promised to supplement your vacation pay with the longevity payment and stipend, you might have the basis for a breach-of-contract claim against the school district.

Short of that, straight time for the vacation days is legal.

For more on salary requirements and exempt employees, go to http://1.usa.gov/12Yu7qO. For more on benefits, go to http://bit.ly/OhVNDt.