General Question

lilikoi's avatar

Why are professionals not legally required to be compensated for overtime?

Asked by lilikoi (10079points) February 10th, 2010

As an engineer, at least where I worked, you were always salaried and full-time meaning 40 hours per week. Quite often, you’d be expected to put in more time than this. 45 was not uncommon, for some 50, 60, 70 hours a week even were the norm.

The state law where I am specifically exempts professionals from the overtime pay requirement. Some companies do have a policy of paying OT, while others do not.

When you are first hired at a company, you cannot know for sure what the work load will be – you have to take the company’s word for it unless you know someone who’s worked there before. If you negotiate a salary based on a 40 hr week, then are later expected to work more, there is little you can do about it if the employer refuses to renegotiate your salary.

It is totally unfair to me. What is the history of this exemption and on what premise is it allowed?

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25 Answers

tinyfaery's avatar

Full-time is minimum 40 hrs a week at most places. As an exempt employee, you get salary, not overtime. This is in CA.

lilikoi's avatar

Yes, but why??

When employers announce a job, they say it is “full-time”, which is defined according to law as a 40 hour work week. You as the future employee do not always have the resources necessary available to you to accurately judge what the time commitment will actually be. It is unfair to the employer to ask for a higher salary on the hunch that you’ll have to work >40 hours; it would be a hard case to make. Yet one should not be expected to work 45 or 70 hours a week and only get paid for 40. Once you’re hired, you have little recourse short of quitting if your employer should choose not to fairly compensate you for your time.

I don’t understand why professionals are exempted from over time. In my mind, no one should be exempted.

tinyfaery's avatar

Was the amount of hours you are supposed to work written into the contract? I’ve seen contracts that states a minumum of hours one must work, but never a max.

marinelife's avatar

It dates back to the labor laws of 1938. Workers were divided into those paid hourly and those paid a flat salary.

Salaried workers have to meet three conditions to be exempt:

“Under current law, each of the following three tests must be met to classify an employee as exempt and therefore ineligible for overtime. First, the “salary-level” test stipulates that employees earning less than a certain level each week cannot be exempt. Second, the “salary basis” test states that employees must be paid a set salary—not an hourly wage—in order to be exempt. Finally, the third screening test is the “duties test,” which states that a worker cannot be denied overtime pay unless his or her duties are primarily “administrative,” “professional,” or “executive” in nature. ” Source

In general, it was thought that productivity was hard to measure for salaried positions.

Cruiser's avatar

Salaried employees as a rule are paid more and expected to do more especially when projects create demands on a company. It is also a way an employer can create a constant with their salary costs making their ability to bid work and manufacture or sell product with a constant overhead whether the company is busy or slow. A company would go broke in a hurry if they had to pay the higher ups time and a half when things get busy.

davidbetterman's avatar

You accepted the salaried position. Did you not read the fine print first?

MrItty's avatar

Hourly workers are paid for the number of hours they do (typically) the same thing, over, and over, and over again. Wait on a customer, wait on a customer, wait on a customer, repeat. Sort this mail, sort this mail, sort this mail, repeat. Hammer the board, hammer the board, hammer the board, repeat.

Salaried workers are paid for getting a set of specific tasks done. Engineer this Gadget. Balance the budget. Create the TPS report.

The two types of jobs are very very different, and it is not remotely surprising to me that there are different payroll models for them.

YARNLADY's avatar

It works both ways. My husband has been a salaried employee for 25 years. He gets paid far more than the hourly people he supervises, and he never gets docked for taking time off for family emergencies, or for personal leave, such as Little League Coach, or for sick time. But, he works several hours every weekend.

Yes, he is on call 24/7, and often works while on vacations. I remember once, we had to stop every couple of hours on one trip, because he had to get a signal to send out the changes he made to the computer. He would upload, then download, and then I would drive on another couple of hours, while he worked.

srmorgan's avatar

There is another side of the “exempt, non-exempt” argument.
Although certain professional or managerial employees are exempt under the Fair Labor Standards Act of 1938 and the employer is not required to pay overtime for time worked in excess of forty in one week, there are certain advantages to being exempt from the FLSA.

Just to add something, even if you are exempt from FLSA, that does not mean that your employer is precluded from paying you overtime for work more than forty hours. It is unlikely in this economy to happen but there is the chance for it.

An exempt employee is paid by the day, not the hour. If you show up, you get paid for the day, or you should get paid for the day, even if you leave an hour after getting there. In order to classify you as exempt, they can not treat you as if you were a non-exempt employee. This is the other side of the coin.

However an employer can establish internal guidelines that modify my previous comment. An employer may set up a Paid Time Off (PTO) policy that governs how sick time or other time off will be calculated. They may ask for substantiation of illness, they can ask for Doctor’s notes, they can set up policies regarding punctuality and leaving before the end of the workday, they can charge you for PTO in the case of your absence at their discretion, etc.

This policy is not often enforced properly and companies that have “nickel and dimed” exempt employees by, for example, docking exempt employees, have found them on the wrong side of an audit by the wage and hours division of the Federal or State Departments of Labor,

I am not an attorney and this should not be taken as legal advice.

PandoraBoxx's avatar

Generally, if you are a salaried person, and need to leave early for a doctor’s appointment, you are not docked for missing those hours. That is the trade-off. If you are hourly, you are not paid for time that you are not there. Also, if you are salaried, you do have the option of pushing back on work because you don’t have the bandwidth. You are responsible for managing your own time. Generally people who produce more work, get paid more when raises come up. Then again, so do people who accomplish a lot by working smarter, not harder. Hourly people do not have that type of control.

You should be keeping a status report of your ongoing projects and where they are. When you are handed a new project, do a time estimate of the work it will take, and either push back as to when you can start it, or ask your manager to prioritize the work you’ve been assigned. Just because everyone else works late, it doesn’t mean you have to. It used to be that people made a point of staying until after the boss left, but that’s not always the culture any more.

I try to work no more than a 50 hour week—8:30 to 6:30, lunch at my desk most days. I found that I was privy to impromptu meetings with higher ups after 5:30. Most days, I ‘m usually there until 9:00. I don’t go in on weekends. Ever. Lots of people leave on time, but put in 6 hours on Saturday or Sunday.

Supacase's avatar

I do understand the reasons for the difference and agree that there are some perks that go along with being salaried. On the other hand, I do think there should be some sort of compensation for time worked above a certain number of hours.

My husband had 145 hours on his time sheet during one two week period. That is almost four weeks worth of work. You would think he could get a comp day for every five extra days worked or something like that. It is nice that he can get off for things during the day, but our life in general is definitely suffering under the workload.

PandoraBoxx's avatar

@Supacase, has he asked for comp time? Mentioned burn-out, or that working that much is damaging to his ability to perform his job well?

Supacase's avatar

He doesn’t have to mention it – they know. His director tells him he needs a break, but they are in a hiring freeze and the work needs to get done. The upper management at corporate don’t give a rat’s ass about one guy a couple of thousand miles away. Trust me, he and I go ‘round and ‘round about this all of the time.

PandoraBoxx's avatar

We had a guy drop dead in a meeting last week.

Cruiser's avatar

@Supacase You can’t have your salary cake and eat hourly wages too!! Welcome to the real world of salaried overworkoholicdom!

lilikoi's avatar

@PandoraBoxx In my experience, you were required to take sick leave for the hours that you spent out of the office for a doctor’s appointment or even for running to the bank to deposit your paycheck. Once you ran out of sick hours, you didn’t get paid for the time you missed.

The employer would ask you to work extra hours (and even without providing any notice), but you couldn’t let a minute go unaccounted for. That is to say, you never worked less than 8 hours a day. Even when there was little work to be done, you were guilted into hanging around the office anyway. Not all offices are like this, though. Some are much more flexible, and as a result I think also much more productive.

@srmorgan In my experience, a salaried employee was payed annually not by the day or hour. Therefore, you were hired on the premise of a 40 hour, 5 day work week, but would end up having to work Saturdays and/or Sundays now and then, frequency depending on the company. You were not compensated for these extra days because your contract was annually based.

@MrItty It is fine that there are different payroll models for different types of work, but at the end of the day your time should be compensated for. Period.

@Cruiser Salaried employees are payed more because their time is more valuable. Just because they get paid what amounts to a relatively higher hourly rate, doesn’t mean they should have to work for free now and again. I disagree that a company would go broke if required to pay salaried employees OT. They simply need to factor this into their budget and plan for it. I know some firms that do pay OT to salaried engineers that have been around for a long time. It would be more reasonable if you could leave when biz is slow, then put in OT when it is busy – that in itself would be a form of compensation for OT. But if you are always required to put in a minimum of 40 h/wk regardless of the amount of work available you should be required to compensate employees for the extra time they spend and really are not operating the company efficiently (only speaking to engineering firms here, not sure how other industries work).

@tinyfaery I’ve had contracts read that my salary is based on a standard 40-hour work week, and that the work schedule is MF 8–5 although some additional time may be occasionally required. Ambiguous. I’ve also worked for people that compensated for OT beyond 40 h/wk. This question is less about any one specific experience and more about professionals in general as a whole. I think it is fine that the max hours are left open-ended. It is reasonable to say that you don’t know what the future will bring. But if you negotiate your salary based on 40 hours per week of work, I still think it is fair to expect compensation for time in excess of this.

@davidbetterman This question is less about any one specific experience and more about professionals in general as a whole. But to answer your question, yes I typically always read the fine print. Yes, I did accept the position (referring to most recent one). Then, new fine print was added and my options were to agree or to quit. This company refused to compensate me for OT because, they claimed, they do this via annual bonuses. Annual bonuses, to me, should be a reward for exceptional performance not for reimbursing your time. Can you tell I value time, lol. Cheat me out of time, and I feel cheated out of life. I take it very seriously.

@marinelife Thank you for another GA. The productivity thing makes a lot of sense. As a project manager or boss in my industry, one of the things you get good at fast is approximating the amount of time it takes to complete a job. Once you know that, you can figure out how much work can be done by a competent salaried employee in 40 hours. I think if you assign this work and it gets done well, it shouldn’t matter how many hours are worked or not worked; what ultimately matters is that the work was done well. For this reason, at least in the field I worked in, I think employers should be flexible with time. And, if they need to assign >40 hours of work in a week, they should acknowledge the fact that you’re taking on extra work and compensate you for it. If an employee is slow and inefficient, you either need to invest in him and bring him up to your standard or you need to replace him with someone competent.

MrItty's avatar

@lilikoi If you don’t like it, quit and get an hourly job. No one’s forcing you to work there. PERIOD.

Cruiser's avatar

@lilikoi You need to see the glass as half full instead of half empty here. You get a salary because you are a valued employee who is valued because you have been deemed to be able to work your ass off for the company at all times. But what you know and they also know is you get to chill and relax when things are slow even dead and still get the big buck paycheck and benefits, company car etc. all the stuff salaried employees wished they had or so they say.

Supacase's avatar

@Cruiser No need to welcome me – been living it for seven years. When did I say I expected him to get overtime anyway?

Cruiser's avatar

@Supacase Quote:When did I say I expected him to get overtime anyway?

About 9 posts above you said…

On the other hand, I do think there should be some sort of compensation for time worked above a certain number of hours.

Hope that helps!

jerv's avatar

This is why I generally prefer hourly jobs. The last time I was on salary, I averaged less than $2/hour. Even the free housing and the medical that I rarely got to use (often not allowed to take time off to go see the doc) only took me up to about $6/hr tops.

I used to work where the manager and assistant manager were paid for 70 hours and 55 hours respectively, but often actually put in 90 and 75, and there wasn’t a damn thing they could do about it (aside from quit) since they were salaried. Companies love to get their money’s worth and if you can get 60 hours of work and only pay for 40 then that is a win for them. Of course, your boss might get a bonus for saving the company money, but c’est la vie.

YARNLADY's avatar

@jerv Ah, I have to just gloat again, Hubby gets bonuses and comp time from his very appreciative company

jerv's avatar

@YARNLADY My stepfather (Mr “I’m rich and you’re not!”) has enough bonuses to break into the low six-digit range. And if he wants to put the owner in a headlock and say, “Fuck you, I’m taking the day off to go skiing!”, he does!
Of course, his employers are less appreciative than fearful since 99% of their business is based on something that he holds the patents on. They weren’t smart enough to put the “We own all your ideas” clause into his terms of employment, so he could just take the company if he were so inclined. Accordingly, they pretty much do what they have to do to keep him happy.

YARNLADY's avatar

@jerv that’s pretty much how hubby works in his company as well. Only he knows how the darn thing works.

Supacase's avatar

@Cruiser Wrong. never said he should get overtime. I mentioned a comp day as opposed to hourly wage on top of salary. In fact, I said 1 comp day to every extra 5 days of work. He works 40 they give him 8 which is a far, far cry from even minimum wage hourly wage compensation.

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