| Kansas employment attorneys representing Kansas employees in wage and hour disputes, back pay, minimum wage, overtime and other salary disputes. Working with clients throughout Kansas, including Wichita, Topeka, Kansas City, Kansas, Salina, Hutchinson, Manhattan, Lawrence, Johnson County, Sedgwick County, Shawnee County and Douglas County. |
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Michael M. Shultz Kaup & Shultz, LC Call: 866-385-9955 (toll free) |
Kaup & Shultz,
Attorneys at
Law, LC,
represents
Kansas
employees in
wage and hour
disputes,
including
minimum wage
and overtime.
Kansas
employees who
think they have
been denied
overtime should
contact Kansas
lawyers who
know the Fair
Labor
Standards Act
and Kansas law
concerning
overtime pay.
Attorneys at
Law, LC,
represents
Kansas
employees in
wage and hour
disputes,
including
minimum wage
and overtime.
Kansas
employees who
think they have
been denied
overtime should
contact Kansas
lawyers who
know the Fair
Labor
Standards Act
and Kansas law
concerning
overtime pay.
| THE SALARY BASIS TEST An exempt employee does not get overtime and almost always must be paid on a salary basis. |
In order for an employee to be exempt from the minimum
wage and overtime requirements of the FLSA, he or she
must be paid, with only minor exceptions relating to
persons paid a fee and certain computer employees, on a
"salary basis". If you do not believe that you are paid a true
salary, then you might be entitled to overtime and you
should consult with an attorney.
DOL regulations at 29 C.F.R. 541.602(a) state that a person is paid a salary if
he or she receives each pay period a set amount constituting all or part of
the compensation, the amount of which is "not subject to reduction
because of variations in the quality or quantity of the work performed."
The minimum salary amount is $455 per week. Generally, according to the
regulations, an employee "must receive his full salary for any week in
which he performs any work without regard to the number of days or hours
worked". However, the regulation recognizes "the general rule that an
employee need not be paid for any workweek in which he performs no
work".
Under this regulation, the salary basis test is generally not met if an
employer makes deductions of absences of less than a day from the so-
called salary. Under DOL interpretation and the U.S. Supreme Court's
decision in Auer v. Robbins, 117 S.Ct. 905 (1997), if an employer has a clear
policy that creates a substantial likelihood that an exempt employee's
salary will be docked under circumstances not allowed in 29 C.F.R. 541.118,
the salary test is not met, and the employee would be considered an hourly
employee potentially entitled to back overtime pay. There are ways for the
employer to limit its liability when it makes such deductions, however.
The rationale behind this interpretation is that since salaried exempt
employees often put in substantial overtime for no additional
compensation, it is unfair to make them "subject to" monetary penalties for
missing a nominal amount of work on isolated occasions, especially if, as is
usually the case, the few hours missed are made up by extra hours within
the same week.
Deductions for partial week absences caused by jury duty, attendance as a
witness, or temporary military leave are not permitted. An employer may
offset any military pay or monetary payments received as jury or witness
fees for a particular week against the employee’s salary for that same
week. Remember, however, that payment usually is not required if the
employee does not work the entire week.
USE OF LEAVE TIME
Employers may require salaried exempt employees who miss partial days
or partial weeks to apply paid leave time to such absences. In a letter
ruling dated April 9, 1993 (BNA, WHM 99:8003), DOL stated "where an
employer has bona fide vacation and sick time benefits, it is permissible to
substitute or reduce the accrued benefits for the time an employee is
absent from work, even if it is less than a full day, without affecting the
salary basis of payment, if by substituting or reducing such benefits, the
employee receives in payment an amount equal to his or her guaranteed
salary." DOL has affirmed this position in several letter rulings issued
since then.
ALLOWED DEDUCTIONS
Deductions from the salary on a full-day basis are allowed under limited
circumstances: a day missed for personal business, or a day missed for
medical reasons, if the employer has a sick leave pay policy in place.
Under the new salary definition regulation, a deduction for an unpaid
suspension for violation of a disciplinary rule may be made on "any basis".
According to the regulations, penalties imposed in good faith for
infractions of safety rules of major significance will not affect the
employee's salaried status. Safety rules of major significance include only
those relating to the prevention of serious danger to the plant, or other
employees, such as rules prohibiting smoking in explosive plants, oil
refineries, and coal mines.
In addition to disciplinary suspensions, one other category of partial-day
deduction from salary is allowed for private employers. Under the Family
and Medical Leave Act, 29 U.S.C. 2612(c), an employer may grant unpaid
leave for FMLA absences, even on a partial-day basis, without affecting
the status of employees who are exempt from overtime pay under 29 U.S.C.
213(a)(1). DOL's regulation on this question is found at 29 C.F.R. 825.206(a)
and commendably makes clear that partial-day deductions for intermittent
leave will be allowed only if the employer, the employee, and the situation
in question are covered by the FMLA.
wage and overtime requirements of the FLSA, he or she
must be paid, with only minor exceptions relating to
persons paid a fee and certain computer employees, on a
"salary basis". If you do not believe that you are paid a true
salary, then you might be entitled to overtime and you
should consult with an attorney.
DOL regulations at 29 C.F.R. 541.602(a) state that a person is paid a salary if
he or she receives each pay period a set amount constituting all or part of
the compensation, the amount of which is "not subject to reduction
because of variations in the quality or quantity of the work performed."
The minimum salary amount is $455 per week. Generally, according to the
regulations, an employee "must receive his full salary for any week in
which he performs any work without regard to the number of days or hours
worked". However, the regulation recognizes "the general rule that an
employee need not be paid for any workweek in which he performs no
work".
Under this regulation, the salary basis test is generally not met if an
employer makes deductions of absences of less than a day from the so-
called salary. Under DOL interpretation and the U.S. Supreme Court's
decision in Auer v. Robbins, 117 S.Ct. 905 (1997), if an employer has a clear
policy that creates a substantial likelihood that an exempt employee's
salary will be docked under circumstances not allowed in 29 C.F.R. 541.118,
the salary test is not met, and the employee would be considered an hourly
employee potentially entitled to back overtime pay. There are ways for the
employer to limit its liability when it makes such deductions, however.
The rationale behind this interpretation is that since salaried exempt
employees often put in substantial overtime for no additional
compensation, it is unfair to make them "subject to" monetary penalties for
missing a nominal amount of work on isolated occasions, especially if, as is
usually the case, the few hours missed are made up by extra hours within
the same week.
Deductions for partial week absences caused by jury duty, attendance as a
witness, or temporary military leave are not permitted. An employer may
offset any military pay or monetary payments received as jury or witness
fees for a particular week against the employee’s salary for that same
week. Remember, however, that payment usually is not required if the
employee does not work the entire week.
USE OF LEAVE TIME
Employers may require salaried exempt employees who miss partial days
or partial weeks to apply paid leave time to such absences. In a letter
ruling dated April 9, 1993 (BNA, WHM 99:8003), DOL stated "where an
employer has bona fide vacation and sick time benefits, it is permissible to
substitute or reduce the accrued benefits for the time an employee is
absent from work, even if it is less than a full day, without affecting the
salary basis of payment, if by substituting or reducing such benefits, the
employee receives in payment an amount equal to his or her guaranteed
salary." DOL has affirmed this position in several letter rulings issued
since then.
ALLOWED DEDUCTIONS
Deductions from the salary on a full-day basis are allowed under limited
circumstances: a day missed for personal business, or a day missed for
medical reasons, if the employer has a sick leave pay policy in place.
Under the new salary definition regulation, a deduction for an unpaid
suspension for violation of a disciplinary rule may be made on "any basis".
According to the regulations, penalties imposed in good faith for
infractions of safety rules of major significance will not affect the
employee's salaried status. Safety rules of major significance include only
those relating to the prevention of serious danger to the plant, or other
employees, such as rules prohibiting smoking in explosive plants, oil
refineries, and coal mines.
In addition to disciplinary suspensions, one other category of partial-day
deduction from salary is allowed for private employers. Under the Family
and Medical Leave Act, 29 U.S.C. 2612(c), an employer may grant unpaid
leave for FMLA absences, even on a partial-day basis, without affecting
the status of employees who are exempt from overtime pay under 29 U.S.C.
213(a)(1). DOL's regulation on this question is found at 29 C.F.R. 825.206(a)
and commendably makes clear that partial-day deductions for intermittent
leave will be allowed only if the employer, the employee, and the situation
in question are covered by the FMLA.
Computer Employee Exemption
The Department of Labor has adopted regulations that implement a
law that Congress passed to make certain computer employees
exempt from the Fair Labor Standards Act overtime requirement even
when paid an hourly wage instead of a salary. However, many
employers have used this exemption too broadly and many computer
employees have been wrongly denied overtime.
As a computer employee, you need to examine the regulations and
determine if you are exempt from getting overtime or if your job duties
require that you be paid overtime. Computer employees who do not
meet the strict test set out in the regulations will be entitled to overtime.
To qualify for the computer employee exemption, the
following tests must be met:
The employee must be compensated either on a salary or fee basis (as
defined in the regulations) at a rate not less than $455 per week or, if
compensated on an hourly basis, at a rate not less than $27.63 an hour.
The employee must be employed as a computer systems analyst,
computer programmer, software engineer or other similarly skilled
worker in the computer field performing the duties described below.
The employee’s primary duty must consist of:
The application of systems analysis techniques and procedures,
including consulting with users, to determine hardware, software or
system functional specifications;
The design, development, documentation, analysis, creation, testing
or modification of computer systems or programs, including
prototypes, based on and related to user or system design
specifications;
The design, documentation, testing, creation or modification of
computer programs related to machine operating systems; or
A combination of the aforementioned duties, the performance of which
requires the same level of skills.
Computer Employees Entitled to Overtime
The computer professional exemption is restricted to (real) "systems
analysts" and "programmers."
Does not apply to employees working in the operation of computers or
in the manufacture, repair or maintenance of computer hardware and
related equipment. It also does not apply just because an employee
uses a computer in his job even if his job is to trouble shoot problems
with the office computers.
The Department of Labor has adopted regulations that implement a
law that Congress passed to make certain computer employees
exempt from the Fair Labor Standards Act overtime requirement even
when paid an hourly wage instead of a salary. However, many
employers have used this exemption too broadly and many computer
employees have been wrongly denied overtime.
As a computer employee, you need to examine the regulations and
determine if you are exempt from getting overtime or if your job duties
require that you be paid overtime. Computer employees who do not
meet the strict test set out in the regulations will be entitled to overtime.
To qualify for the computer employee exemption, the
following tests must be met:
The employee must be compensated either on a salary or fee basis (as
defined in the regulations) at a rate not less than $455 per week or, if
compensated on an hourly basis, at a rate not less than $27.63 an hour.
The employee must be employed as a computer systems analyst,
computer programmer, software engineer or other similarly skilled
worker in the computer field performing the duties described below.
The employee’s primary duty must consist of:
The application of systems analysis techniques and procedures,
including consulting with users, to determine hardware, software or
system functional specifications;
The design, development, documentation, analysis, creation, testing
or modification of computer systems or programs, including
prototypes, based on and related to user or system design
specifications;
The design, documentation, testing, creation or modification of
computer programs related to machine operating systems; or
A combination of the aforementioned duties, the performance of which
requires the same level of skills.
Computer Employees Entitled to Overtime
The computer professional exemption is restricted to (real) "systems
analysts" and "programmers."
Does not apply to employees working in the operation of computers or
in the manufacture, repair or maintenance of computer hardware and
related equipment. It also does not apply just because an employee
uses a computer in his job even if his job is to trouble shoot problems
with the office computers.
| See below for information on the exemption applicable to computer employees |
| Click here for a short test on the computer exemption and determine if you are entitled to overtime |