Salaried Employees Work Hours: Laws from FLSA


Exempt Employees and Rules Requiring Specified Hours

You probably are aware that exempt employees generally should be paid the same salary regardless of the number of hours they work or the quantity of work they produce. But, can you require them to work a certain schedule and track their hours?

Q: Can we require salaried, exempt employees to work a specific schedule and to clock in and out for any purpose other than to track paid time off? We have several exempt managers who need to be at work during the same hours that the employees they supervise are here. But, we are concerned that if we require the exempt employees to work a certain number of hours and keep track of the hours worked, we risk that they will be considered hourly, nonexempt employees entitled to overtime.

A: Interestingly, the Fair Labor Standards Act (FLSA) and its implementing regulations do not specifically prohibit employers from requiring exempt employees to work a particular schedule or to track the hours they work. In fact, the Department of Labor (DOL), in the preamble to revised exemption regulations, stated that employers may require exempt employees to work a specific schedule and to record and track hours without affecting their exempt status.

(Download a free Hours of Work model policy including HR best practices and legal background.)

However, you should be aware that if you require exempt employees to work a certain number of hours and account for their work time on an hourly basis, you may jeopardize the exempt status of these employees if the accounting has the effect of treating them like hourly workers. This practice could make the employer liable for past overtime.

For example, if the exempt employee’s salary fluctuates based on the number of hours worked or the employee’s pay is docked for hours not worked in any day, the employee most likely will not be considered exempt. (However, interestingly, the FLSA exemption regulations allow you to pay an exempt employee additional compensation without jeopardizing the employee’s exempt status. This additional compensation can be paid on any basis, including a flat sum, bonus payment, straight-time hourly amount, time and one-half, or any other basis, including paid time off.)

You generally may track hours worked for purposes unrelated to the employee’s pay (such as to account for work time billed to clients or performed under a federal contract) and may record daily attendance. And, you also must comply with applicable wage and hour recordkeeping requirements for exempt employees, such as recording the time and day of the week the exempt employee’s workweek begins and total pay for the week.

Accordingly, if you require exempt employees to work a specific number of hours or arrive at a specific time (and have them clock in and out to show that they are complying with these requirements), you need to make sure that these policies do not appear to be treating them as nonexempt, and thus jeopardize their exempt status. You best practice, then, is to show that these requirements are directly related to the exempt employees’ job duties. So, you are wise to tie the exempt employees’ required schedule to their managerial job duties, instead of simply focusing on the number of hours the exempt employees work or their starting time. For example, if an employee manages nonexempt employees who must be at work between 9 a.m. and 5 p.m., you can require the exempt manager to be at work during the same hours to supervise properly.

(Download a free Hours of Work model policy including HR best practices and legal background.)

Regards,

Robin Thomas, J.D.
Personnel Policy Service, Inc.

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6 Comments on "Salaried Employees Work Hours: Laws from FLSA"

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Bernice McLean
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Bernice McLean
2 months 15 days ago

I was hired as a title 1 teacher by the school district. My assignment was at a private Christian school. I was contracted to work 25 hours per week, and was only paid for 25. However, for two years I worked 30 to 40 hours hours per week without compensation from the private school. Is the private school liable in the Fair Labor Act?

bleach
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bleach
1 month 5 days ago

If you are a salaried employee the school is not liable. I don’t like that they aren’t liable; but unfortunately you are mostly at fault for allowing them to let you work that much. Draw a line in the sand and say no to things.

Rose
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Rose
1 month 14 days ago

The company I work for bought my old company out several years ago. In the contract, my old boss and new bosses signed, I was to remain a salaried employee. Now with the changes in wages, I have been told I have to start clocking in and out and will be considered hourly. Do I have any recourse with the fact the contract they negotiated said I was to remain a salaried employee. my new boss says he cannot give me a big enough salary increase to meet the salaried status.

bleach
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bleach
1 month 5 days ago

You are salaried under the 47500 benchmark? They need you to punch in so they can track your hours to pay overtime under the new laws. You should be getting your salary pay as normal but with overtime if you work it. Your new boss may think your overtime pay won’t be as much as giving you a raise to 47500. Technically its considered hourly now, but it shouldn’t change anything on your end.

Tim
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Tim
17 days 19 hours ago

I am a salaried employee. When I am in town I must work 8a to 5p but when I travel I work 60 plus hours a week without any comp time. Is that proper?

Stacey Rodgers
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Stacey Rodgers
6 days 2 hours ago

Question so if im a exempt employee that has a set schedule to work as for as days and times. I dont manage people and will always work a full schedule how is that legal to require me to work overtime and not get paid for it? I could see if my schedule was flexible and some time i didnt have a full schedule, but if i always work 40 hours and you still require more just because im salaried thats not fair.

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