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BusinessColumnistsCarrie Mason-Draffen

Promotion comes with extended hours -- and there's nothing illegal about it

The rules and regulations give employers wide powers

The rules and regulations give employers wide powers to determine the number of hours employees work. Photo Credit: iStock

DEAR CARRIE: I work for a local company that pays all full-time exempt and nonexempt employees based on a 35-hour workweek. An exempt employee I supervise is being promoted, and will receive a $5,700 annual salary increase. The manager informed me that because of the move-up in rank and pay, the exempt employee will now have to work 40 hours a week, five hours more than we typically do. I understand the definition of exempt, but can a manager legally change an employee's schedule so that the person regularly works beyond what the company defines as full time? -- Extended Hours Legal

DEAR EXTENDED: It's probably legal. As long as the company meets the salary and duties requirements for declaring that worker exempt, it can require her to work any number of extra hours.

"If both the salary and job requirements are satisfied, employers have large discretion in the number of hours they may require an exempt employee to work," said attorney Beth Fagin, a labor and employment consultant at the labor-relations and human-resource consulting firm Portnoy, Messinger, Pearl & Associates Inc. in Syosset.

"The fact that the employee in question is being told that [her] required work hours are now 40 would not violate the Fair Labor Standards Act, which does not set a maximum number of hours a week for exempt employees."

It's worth mentioning that state labor law requires companies in such industries as retail and manufacturing to give employees a day of rest a week. Outside of that, those workers can legally be required to work any number of hours.

And an exempt employee doesn't have to be paid for any extra hours.

"The term 'exempt employee' refers to the fact that the employee is exempt from the requirements of the overtime laws," Fagin said.

The FLSA defines the duties and salary requirements that determine whether an employee can be legally classified as exempt. The two most widely applied exemptions are "executive," which includes managers whose primary duties consist of supervising at least two full-time employees, and "administrative," for employees who exercise discretion and independent judgment regarding important business matters. Executive secretaries fall into this category.

The FLSA and New York State wage laws set the minimum salary for exempt employees. That salary is currently $656.25 a week in New York, which trumps the federal $455. The U.S. Department of Labor has proposed more than doubling the latter amount to $970 a week.

The rules for nonexempt employees are different. If the company asks them to work more than 35 hours a week, they have to be paid for all those extra hours.

But as Fagin points out, if they don't exceed 40 hours a week, that extra time could be paid as straight time. That changes when they exceed 40 hours a week, however. Then, they must earn at least one and one-half times their regular hourly rate for those extra hours.

DEAR READERS: Several of you emailed me in response to the Premature Good-Bye question last week from an employee who was dismissed soon after she gave a two-week notice. You wanted to know if she is entitled to unemployment benefits.

The answer is she could be, since she is out of two weeks of work through no fault of her own. But if she qualified for benefits, she would probably receive just one week because of the one-week waiting period.

Thanks to all for keeping this columnist on her toes.

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