My fiance is a Termite Technician, he's been in this field for going on 10 years. His current employer has him set up as a salaried employee. They will deduct time from his pay for any time that is missed due to personal reasons, doctor's appt etc., but they don't pay him overtime. Is this legal? It seems as though if they deduct time they should pay him for what he works over. It is my understanding that he would be non-exempt.

Another question:
Most of the time he will get lunch @ a drivethru or he will bring his lunch, either way he eats while he is in his truck on the way to his next job. At the end of the week, even though he is salary, they require him to total his time and fax it to them, minus 1 hour every day for lunch. Can they require him to take an hour lunch everyday? They overload him with work & if he was to take an hour lunch everyday, he would never finish his scedule. It just seems unfair to me.

If he is non-exempt, then he has no legal expectation for being paid when he does not work; however, he MUST be paid overtime if he works over 40 hours in a week. Salaried is only a pay method and has no legal status of its own. I can't say I see the point of calling someone salaried and then docking them, but employers WILL try to do it.

Both exempt and non-exempt employees CAN be required to take an hour lunch every day. They cannot dock him if he doesn't take it, but if they want him to take it and he does not, he can be fired for refusing a lawful order of the employer.

Thanks, that information is very helpful.

The employer might believe that your fiance is employed in an exempt, salaried position. However, if the employer is deducting from his salary for the week based on partial-day absences (i.e. hours not worked in less than full day increments), then the employer forfeits the overtime exemption because his employment fails the salary basis test (assuming the employer doesn't fix its error within the FLSA's "window of correction"). If that happens, your fiance is entitled to overtime pay.

Note that although the employer can fire an employee for not taking a lunch break as ordered, the employer cannot retaliate against an employee for having asserted his rights to proper overtime compensation. Here in the Eleventh Circuit, which includes Georgia, an employee's internal complaint to his employer that he is not being paid the overtime required by law can be a sufficient basis for a retaliation claim (other jurisdictions require a formal lawsuit or complaint filed with a governmental agency before retaliation protections are triggered). Thus, if the employer does not fire other employees for working through their lunch period, and did not fire your fiance for working through his lunch period until he complained to his employer that his rights were being violated under the FLSA by not receiving overtime for hours worked over 40 each week, then your fiance might also have a retaliation claim for lost wages arising out of his discharge in addition to his overtime claim for back wages earned during his employment.

When in doubt, contact an attorney who knows this area. Go to www.nela.org to find a Georgia attorney with expertise in wage and hour issues. The NELA attorneys dedicate at least 51% of their law practice to representing employees.