Just because you pay an employee a salary does not render that employee “exempt” from the overtime requirements of the Fair Labor Standards Act. A salaried employee can be non-exempt if the employee fails to meet the non-salary aspects of the tests for the exemption. For example, a assistant retail manager who exercises no independent judgment in how he or she “manages” the store, but merely serves as a glorified, and more highly paid, babysitter for the other employees.
As an employer, you have two options to pay these salaried, non-exempt employees:
Under the standard method, you calculate the employee‘s weekly rate based on the salary divided by the number of hours worked that week, and then pay the employee 1.5 times that rate for all overtime hours. Thus, if a non-exempt employee earns a salary of $1,000 a week, and works 50 hours in a week, the employee would earn an additional $30 per hours worked over 40 ($1000 / 50 = $20 per hour base weekly rate x 1.5 = overtime premium of $30). Thus, in this week, the employee would earn an additional $300 for the 10 hours of overtime, rendering his total pay for that week $1,300, not the customary $1,000 salary.
Under the fluctuating workweek method, you include the base-rate part of the overtime premium in the employee’s weekly salary, and only pay the 0.5 premium kicker as overtime. Using the same example as in number 1 above, the employee would still have an hourly rate of $30, but would only earn an additional $100 for the week, as under this method, $20 of the $30 overtime rate has already been paid as part of the base salary.
As you can see, there is a clear economic advantage to employers using the fluctuating workweek calculation to pay overtime to salaried non-exempt employees. You’ll realize a 66 percent savings on your overtime pay. Under the FLSA, however, an employer cannot unilaterally implement the fluctuating workweek calculation. Instead, to pay salaried, non-exempt employees via this advantageous method, you must meet these four elements:
- the employee’s hours must fluctuate from week to week;
- the employee must receive a fixed salary that does not vary with the number of hours worked during the week (excluding overtime premiums);
- the fixed amount must be sufficient to provide compensation every week at a regular rate that is at least equal to the minimum wage; and
- the employer and employee must share a “clear mutual understanding” (best confirmed in a written document) that the employer will pay that fixed salary regardless of the number of hours worked.
Recently, an Ohio federal court examined whether an employer, sued in a misclassification case, can use the fluctuating work week for its calculation of unpaid overtime. The court said no, for one key reasons: in a misclassification case, it is impossible for the employer and its employee to have had the required “clear mutual understanding.” Because the parties never agreed to an essential term of a fluctuating work week arrangement—that overtime would be paid at different rates depending on the number of hours worked per week—it is improper to use that calculation for purposes of back pay in a misclassification case.
What are the takeaways from this case?
If you haven’t recently audited your wage-and-hour practices, it’s a good idea to do so sooner rather than later. Classification issues should be a key component of any wage-and-hour audit. Do not mis-assume that an employee is exempt merely because you pay a salary.
If you have non-exempt salaried employees who work hours fluctuate from week to week, give strong consideration to implementing a fluctuating work week, via a written agreement that explains, in plain English the arrangement.
- If a salaried employees whom you’ve been treating as exempt sues claiming a misclassification, it is likely that you will have to pay damages at the full time-and-half overtime rate, not at the half-time fluctuating work week rate.