You are hourly...exempt!?

January 9, 2021 5:53 AM

This is in NYC. A new job I just accepted is hourly exempt and I will be expected to work 40-45 hours. I spent a bit Googling this but it made my head hurt as it didn't seem like I met the requirements for exempt as outlined by the FSLA. Is there somewhere that clearly explains the rules for hourly exempt? Because I couldn't find it. Everything I found related to jobs being paid salary. I'm guessing that if I am exempt, then I am being paid for anything over 40 but just not the overtime pay? Thank you.
posted by signondiego to Law & Government (12 answers total)

I am not a lawyer of any kind.

As far as I know, and as far as research online tells me, there is literally no such thing as hourly exempt. In order to be exempt from overtime, you must be paid on a salary basis (among other requirements.) Either they've given you bad information, you've misunderstood it, or they're acting illegally.
posted by Tomorrowful at 6:18 AM on January 9, 2021 [7 favorites]

This isn't a thing. I wonder if they've (incorrectly, obviously) set it up like this so they can have a reason not to pay you for times when there is no work? That you could in theory have 45 possible work hours a week so they want you to be available, but in actuality you'll only be scheduled part time? It's still wrong and this is ringing a big alarm bell, but that's my first theory. That they know you'll never work enough to get near OT so they've said it's exempt, and they want to hedge with the hourly so they can not pay you for slow hours.
posted by phunniemee at 6:28 AM on January 9, 2021

Here is the FAQ from the NY Department of Labor on overtime/exempt rules - https://www.labor.ny.gov/legal/counsel/pdf/overtime-frequently-asked-questions.pdf

Within that FAQ, there are links to additional info on the 3 most common categories of “exempt” - Executive, Admin, and Professional.

For the Admin exemption to apply, among other things, you must be paid a minimum salary of $58,500.

If your salary is less than that, I would really dig into whether you should be receiving overtime and get clarifications on your employment classification.
posted by icy_latte at 6:31 AM on January 9, 2021 [1 favorite]

Response by poster: Thank you, that's what I was thinking! I just doubled back to them to see if it was a typo/error.
posted by signondiego at 6:37 AM on January 9, 2021 [1 favorite]

My current job (public librarian) used to be classified this way. But then I think someone figured out that it made no sense (practically and possibly legally) and we were changed to non-exempt hourly.
posted by wsquared at 7:45 AM on January 9, 2021

There are a couple industry exceptions to overtime laws (at least at the federal level, NY wage laws can be more strict), most notably IT but also agriculture, transportation, and seasonal labor. But beyond that no, hourly exempt is not a thing.
posted by muddgirl at 8:09 AM on January 9, 2021 [1 favorite]

Silly idea, is it a contract template where they were supposed to circle or cross out either hourly or exempt and forgot to?
posted by flimflam at 10:44 AM on January 9, 2021

Response by poster: @flimflam: What I received was an offer letter that said, "This is an exempt position." and "As an exempt employee". Those were the only references to the word exempt, so that leaves no room for error.

I do not work in an industry that is exempt to overtime laws, and even then NY state law overrides that as muddgirl pointed out. So not sure what is going on here.
posted by signondiego at 10:56 AM on January 9, 2021 [1 favorite]

When they say hourly exempt, they might be trying to say you have to work between 40-45 hours per week to make your salary. In that case you would not be paid extra for the hours 41-45. If you are salaried, that is within the rules. However, they need to be clear on what happens if you don't work 40 hours in a week (and don't use PTO or other earned time). If they will under pay you if you don't reach 40 but not pay you for overtime, that is not the definition of exempt and they are likely breaking the rules.
posted by soelo at 11:13 AM on January 9, 2021 [1 favorite]

I think it's fair to push back and ask "Is this position hourly or exempt?" It literally cannot be both (with a very few exceptions). If the pay is hourly then they need to pay overtime.
posted by muddgirl at 11:13 AM on January 9, 2021 [2 favorites]

Hourly exempt I believe is a term associated with your pay schedule. You will likely be paid bi monthly on the 1st and 15th. The average month has 22 or 23 work days so pay periods may have slightly more hours in them.
posted by The_imp_inimpossible at 5:01 AM on January 11, 2021

Response by poster: Update: HR had used a template and didn't correct upon sending the offer. This is a management position that had been negotiated to me in hourly pay, and they had been used to such a position being offered in terms of salary. Hence the offer letter referring to exempt status, but stating my hourly pay. Thanks everyone.
posted by signondiego at 2:55 PM on January 11, 2021