Paid via day rate but work 10-12hrs. per day. Is that legal?
- Thread Starter Roella
- Start date
cbg
Super Moderator
It might be. Massachusetts does NOT require overtime for over 8 hours in day, only for over 40 in a week.
At the end of the week, if the amount you are paid is equal to or more than the state minimum wage times the hours you were worked, plus overtime for any hours over 40 in the week, you were paid legally.
At the end of the week, if the amount you are paid is equal to or more than the state minimum wage times the hours you were worked, plus overtime for any hours over 40 in the week, you were paid legally.
Zigner
Well-Known Member
What are your actual job duties that you perform?
cbg
Super Moderator
It's not a question of how many hours the day rate covers The law doesn't care about that.. At the end of the week, add up how many hours you actually worked. Multiply the day rate by the number of days you worked. Minimum wage in MA is $12. Multiply the first 40 hours by $12 and the remaining hours by $18. Add the two together. If you got that much, you were paid legally.
Example: Your daily rate is $200. You work 5 days and a total of 52 hours. You were paid $1000 ($200 a day times 5 days). 40 hours times $12 is $480; 12 hours times $18 is $216. $480)+$216 is $696. You were paid $1000, which is more than $696 - thus you were paid legally.
Example: Your daily rate is $200. You work 5 days and a total of 52 hours. You were paid $1000 ($200 a day times 5 days). 40 hours times $12 is $480; 12 hours times $18 is $216. $480)+$216 is $696. You were paid $1000, which is more than $696 - thus you were paid legally.
Job Duties include taking customer orders, working on AR issues, insuring product is merchandised correctly, putting up point of sale material and many others.
We do not go after new business and/or solicit for new business
PayrollHRGuy
Well-Known Member
As long as you are paid at least minimum wage for the first 40 hours you work each week and 1.5 times the minimum wage for all hours over 40 each week it really doesn't matter how the employer classes you.
Zigner
Well-Known Member
The law doesn't care about that specifically, so long as you are being paid in excess of minimum wage, including overtime (as applicable).
Zigner
Well-Known Member
The phrase you are looking for is "salary, non-exempt".
cbg
Super Moderator
The only two classifications of employee the law recognizes are exempt and non-exempt. You are non-exempt and you are being paid as such. The law does not care about day rate or hourly rate as long as you are paid correctly. Since you appear to be paid correctly, that's all there is to it.
army judge
Super Moderator
Your employer is to commended for running a legal operation, and I applaud their ability to extract a pound and half of flesh daily, rather than the standard from yesteryear, a mere pound of flesh daily.
May good befall all of you, as you make that money!
Tax Counsel
Well-Known Member
I disagree in part. I agree that for federal and state minimum wage laws all the employer must pay is what the applicable minimum wage is, i.e. to meet federal law the employer must pay at least $7.25 per hour and in Massachusetts the employer must pay $12/hour. So, for example, if the employer pays $15/hour, then the employer's base rate meets both federal and state minimum wage laws.
But the problem is the overtime. Federal law on overtime is that the employer must pay 1.5 x the regular wage rate for all hours over 40 hours worked in the work week. So if the employer's regular wage rate is $15 then overtime pay would be $22.50/hour.
That means in order to determine the correct pay for the OP, the base hourly wage has to be determined. The U.S. Department of Labor, Wage and Hour Division (WHD) addresses how the base wage rate is determined for employees paid a day rate as follows:
If the employee is paid a flat sum for a day's work or for doing a particular job without regard to the number of hours worked in the day or at the job, and if he/she receives no other form of compensation for his/her services, his/her regular rate is determined by totaling all the sums received in the workweek at the day or job rates and dividing by the total hours actually worked.
DOL Field Operations Handbook (FOH) 32b03.
Given that example, the employee was paid for the week $1,000, which is 5 days work at the day rate without regard to the numbers of hours actually worked and no other pay in addition to the day rate. Applying the rule from the FOH that I cited above that makes his regular rate $1,000 divided by the hours actually worked (52), which works out to be a regular rate of 19.23/hour. The overtime rate would be 1.5 x 19.23 = $28.846/hour. Now to determine what overtime is due, you'd take the regular rate of $19.23 x 40 = 769.20 plus 12 hours of overtime at $28.846 = $346.15. The total of the regular pay and overtime pay would then be $769.20 + $346.15 = $1,115.35. So in your example, paying the employee just the $1,000 based on the day rate would violate federal law because it does not properly account for overtime.
In short, where the pay is a day rate, the employer cannot avoid paying the extra overtime premium when the employee works over 40 hours a week by simply paying only that day rate and saying the employee gets just that much and no more regardless of hours worked. The DOL essentially assumes that the day rate is the rate of pay for no more than 40 hours a week.
cbg
Super Moderator
I was using the bare minimum - the state minimum wage. Since she does not have, or give, a daily rate, I used an overtime rate based on the state minimum wage. But I take your point.
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