Legal or not? Salary vs Hourly Wage

[SamanthaWV]

Entitled to overtime pay?

What is the name of your state? West Virginia

My brother works for a small company with only four employees. His job duties include installing carpet and tile floors. He is paid a salary of $400/wk. He works an average of 60-70 hours per week. All his co-workers are paid exactly the same, work about the same hours and perform the same job duties. None of them are managers, etc. They simply lay carpet and tile.

QUESTIONS: Is it legal for them to be paid salary instead of an hourly wage? They work 20-30 hours extra per week without extra pay.

If it is illegal--how do they go about filing a complaint?

Thank you!

Sincerely,
Samantha

 

[Beth3]

Non-exempt employees may be paid on a salary basis as long as they also are paid time and a-half for their overtime in addition to their fixed weekly salary. From what you have posted, I strongly suspect the company owner is in violation of wage and hour laws. Your brother and his co-workers should contact West Virginia's Department of Labor and file a complaint.

 

[cbg]

In addition, under the new law enacted in August, they would have to make a minimum of $455 per week before they could qualify as exempt even if their duties DID support such a classification. So that's another violation.

 

[SamanthaWV]

Overtime Pay

I called the labor board on behalf of my brother and was told by a US Department of Labor employee that unless my brother's employer grossed over $500,000 for the year then the employer is not subject to the DOL's laws of paying overtime, but may be subject to West Virginia's state guidelines.

The DOL employee told me that unless my brother's employer has six or more employees, then the employer may not be subject to WV's guidelines either. My brother's employer is a LLC with about 4 employees.

The DOL employee gave me a West Virginia phone number to call to check on the six or more employee's rule, because he was not entirely sure if this applied in my brother's case. After several attempts, I have not been able to reach anyone locally by phone yet.

Here are my questions:

Is it true that my brother's employer is not subject to paying overtime and can legally pay my brother a salary for installing carpet if he, the employer doesn't gross over $500,000 per year?

Is it also true that he's not subject to West Virginia guidelines of paying overtime if he has 5 or less empoyees?

I would appreciate any information that you have.

Also, thanks to the two of you who answered my questions in the past.

Sincerely,
Samantha

 

[cbg]

1.) Yes and no. There are two qualifications for an employer to be subject to the FLSA (the law that governs overtime pay). One of them is that they have a gross annual income of $500,000 or more. However, even if they take in less, they can still be subject to the FLSA IF they engage in interstate commerce. This has been interpreted so broadly that virtually every employer falls under it. If your brother's employer has suppliers or clients out of state, they *probably* are subject to the FLSA even if they have an annual income of under $500,000.

2.) I don't have specifics on that, but it would seem likely. If you can't reach the WV DOL (the number I have is 304-558-7890) talk to a WV attorney that is versed in employment law.

 

[SamanthaWV]

Thank you again for your help. I have a few more questions.

My brother has crossed the West Virginia state line several times to work on floors in Ohio and Kentucky. His employer also makes several trips per year out of state to buy tile, etc. Is this something that usually qualifies as interstate commerce?

Also, in recent months, my brother began tracking the hours that he works. His employer keeps no record of his hours via a time clock nor time sheet, etc. How will my brother be able to prove that he works 20 to 30 hours overtime per week without getting paid for it? What does the DOL need as proof?

 

[cbg]

In my opinion yes, this would qualify as interstate commerce. It's not my opinion that counts, though, it's the DOL's.

Your brother doesn't have to prove what he worked. He tells the DOL what he worked and his employer has to prove that he didn't.