June 10, 2025
FLSA Q & A – Is a Salaried Employee Due Overtime Pay? It Depends!
The U.S. Department of Labor (DOL) announced it recovered $101,690 in back wages and damages owed to 31 employees who were paid a salary but not overtime for hours worked over 40 in a workweek.
The employer paid its service technicians and apprentice helpers a salary and did not pay them the correct overtime rate as required by the Fair Labor Standards Act (FLSA). The kicker? The actual back wages owed were half the amount recovered: $50,845. What’s the other half for? Damages!
Remember, there is a difference between being paid a salary and being FLSA exempt or non-exempt. Non-exempt employees who are paid a salary must still be paid at least minimum wage for all hours worked and paid 1.5 times the employee’s regular rate of pay for all hours worked over 40 in a workweek. Why? Because they are not exempt from the minimum wage and overtime requirements of the FLSA!
Getting it right the first time can be difficult, particularly for a small business that likely has fewer resources and no HR administrator. It is reported that this employer had just 28 employees. So how did 31 get back wages? The DOL will usually require an employer to pay back wages that are owed for the last two years. Intentional violations may result in liability for three years’ back wages. The employer must then contact all the former employees who worked in the covered job classification, calculate, and pay the owed wages.
If you are a small business owner, there are resources out there for you. Many are free or low cost. If you belong to your state or local chamber of commerce, many provide HR information, toolkits, guidance, and more. There is likely a chamber member who is an HR consultant who can help. And, when in doubt seek guidance from employment counsel. Remember, it’s not just the FLSA with which you must comply but states and local wage and hour laws, too!
