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Is paying an employee that is salary on an hourly basis with no overtime, legal?

Trenton, NJ |

I am being paid hourly but am a "salary employee" on paper. I do not receive overtime pay when I work 60 hours a week. Is this legal?

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Attorney answers 5

Best Answer

In order to be considered exempt, your employer must pay you a salary that does not vary from week to week. If you are in fact being paid hourly, then you are probably non-exempt and you are entitled to receive an overtime premium for any hours worked over 40. The main exception to this general rule is for computer professionals. Computer professionals can be paid hourly and still be considered exempt so long as their hourly rate is more than $27.63 per hour.

This information is provided for informational purposes only. This is not legal advice and this response does not create an attorney-client relationship. If you wish to obtain legal advice, you should retain and consult with a local attorney.


Generally, no. Most hourly employees are non-exempt and should be paid overtime.

However, it's unclear from your question whether you are not being compensated at all for your work past 40 hours or if you are not being paid an overtime premium. In either case, there are many of us on AVVO who handle overtime and you should reach out to determine whether you have a viable overtime claim.

Joshua Erlich is an attorney in Arlington, Virginia. His response to your question is general in nature, as not all the facts are known to him. You should retain an experienced attorney to review all the facts in your case in order to receive advice specific to your case. Mr. Erlich's statement above does not create an attorney/client relationship.


To be exempt from overtime pay, your weekly salary has to be at least $455 and your primary duties must fall within certain executive, administrative or professional categories. You should consult with an employment attorney to determine whether you have a claim for nonpayment of overtime wages.

The information provided above is for general purposes only. It does not constitute legal advice or create an attorney-client relationship. Seek competent legal representation, because the facts of each case are different.


It mostly depends on your job title and duties as well as the salary. You are probably not a "salary" employee but an "exempt" (from overtime) one.

This should not be considered legal advice and is intended for educational purposes only. It does not constitute a contract for legal services between any parties. Answers are given to questions for which there may be additional facts not mentioned which might change the legal issues or consequences.


I agree with Mr. Page. First of all, it is not clear what you mean that you are being paid hourly but are a "salaried employee on paper." If in fact you are paid according to the number of hours you work, then you are an hourly employee, not a salaried employee, and your employer's mischaracterization of your status is improper and will likely be disregarded. Second, as Mr. Page correctly states, if you are a computer professional being paid in excess of $27.63 per hour then you are not eligible for overtime. Third, if you are not a computer professional, then there are certain other job categories that are classifiable as exempt from overtime, but only if the employer is paying a flat salary or a set fee per job (i.e. piecework). If your pay is truly an hourly wage, then your employer must pay you overtime -- unless you are a computer professional paid more than $27.63 per hour.

Hope this helps. Good luck!

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