Chilly Willy wrote:SOMEONE has to be tracking the hours, and if the employee does it and hits their boss with it, you can bet the boss will put in their own time clock, and/or fire said employee.
You refer to this statement:
Among other things, those regulations require employers to maintain detailed records of hours worked by each non-exempt employee.
So, if you are a NON-EXEMPT employee then, by law, your employer must keep track of your hours worked. I'll gladly go over the exemption bit again because it's a very important distinction.
Chilly Willy wrote:Again, if you don't punch a time clock (be it your own or the companies), you aren't being paid by the hour.
In general, I agree. Although, note that the law allows for tracking hours by other means. But, I agree that there is no basis for employees tracking their own hours, which is why this is usually a checked process.
However, whether or not you are being paid by the hour does not determine if you are exempt. The FLSA provides an exemption "for any employee employed in a bona fide professional capacity," as well as "for computer systems analysts, computer programmers, software engineers, and other similarly skilled computer employees," among others.
The qualifications for exemption are covered in Part 541 of Title 29 CFR. Here's what it says regarding exemptions for "professional" employees:
§ 541.300 General rule for professional employees.
(a) The term “employee employed in a bona fide professional capacity” in section 13(a)(1) of the Act shall mean any employee:
(1) Compensated on a salary or fee basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging, or other facilities; and
(2) Whose primary duty is the performance of work:
(i) Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or
(ii) Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
(b) The term “salary basis” is defined at §541.602; “fee basis” is defined at §541.605; “board, lodging or other facilities” is defined at §541.606; and “primary duty” is defined at §541.700.
The specific qualifications for a creative professional are described in §541.302. As for the term, "salary basis":
§ 541.602 Salary basis.
(a) General rule. An employee will be considered to be paid on a “salary basis” within the meaning of these regulations if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee's compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.
Under the current labor laws, it is entirely possible for a salaried employee (even one whose salary exceeds a rate of $455 per week) to fail to meet any other qualifications for exemption and therefore be entitled to overtime pay, in which case the employer must keep track of the non-exempt employee's hours worked.
Now, here's how overtime is calculated for a salaried employee. A non-exempt salaried employee's overtime pay (at time-and-a-half) is determined based on his or her regular rate of pay. Overtime is defined as hours worked in excess of 40 hours per workweek. In simplified terms, regular rate of pay is calculated as weekly pay divided by
hours worked in a particular week.
Here's an example:
Joe receives an annual salary of $13k, so his weekly rate is $13k / 52 = $250 (assuming 52 workweeks per year). If Joe works 50 hours this week, his regular rate of pay is $250 / 50 = $5. So, his total pay for this week will be $5 * (40 + 1.5 * (50 - 40)) = $275. This can be considered a minimum; employers may agree to use other methods to calculate overtime, such as straight-time pay.
Also note that, as a salaried employee, Joe cannot be paid less than $250 for a given week based on his hours worked unless he misses the whole week. However, if there is a written agreement between Joe and his employer regarding missed time, that agreement will instead be the determining factor.
While I'm citing Federal regulations, here's the part on exemption of "computer employees":
§ 541.400 General rule for computer employees.
(a) Computer systems analysts, computer programmers, software engineers or other similarly skilled workers in the computer field are eligible for exemption as professionals under section 13(a)(1) of the Act and under section 13(a)(17) of the Act. Because job titles vary widely and change quickly in the computer industry, job titles are not determinative of the applicability of this exemption.
(b) The section 13(a)(1) exemption applies to any computer employee compensated on a salary or fee basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities, and the section 13(a)(17) exemption applies to any computer employee compensated on an hourly basis at a rate not less than $27.63 an hour. In addition, under either section 13(a)(1) or section 13(a)(17) of the Act, the exemptions apply only to computer employees whose primary duty consists of:
(1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
(2) 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;
(3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
(4) A combination of the aforementioned duties, the performance of which requires the same level of skills.
Notice how this section provides for the exemption of employees that are being paid on an hourly basis. So, it is also entirely possible for an employee earning hourly wages to be exempt
from overtime pay.
To reiterate, if your hours worked are not being recorded and you are often working more than 40 hours per week (salaried or not), it would behoove you to make sure you are in fact exempt from overtime pay.
29 USC Ch. 8 (The Fair Labor Standards Act)
29 CFR 541 - Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Computer and Outside Sales Employees