My husband and I are new to Virginia. Is it legal in Virginia for an employer to switch an employee from salary to hourly off and on? My husband's boss said that if he works 45+ hours a week he will receive his regular salary. If he works less than 45 hours a week he will receive hourly pay. Is this legal in Virginia? Some weeks he works 50+ hours and some its just under 45, due to the business that he is in. He also recently took off time for our marriage and honeymoon. His boss had earlier agreed to pay him during his leave. Now she is saying that he has to make up the time he missed within the next couple of weeks without extra pay. He does not have any sick days or vacation days in his contract. Thanks for any help or advice you could give us.

What you describe is not legal in any state.

Any given position is either exempt or non-exempt by definition. It is the individual's job duties that determine which. In the very, very large majority of cases, non-exempt employees are paid on an hourly basis and exempt employees are paid on a salaried basis. Please note that just because an individual is paid on a salaried basis does not make them exempt. A non-exempt employee CAN legally be paid a salary, as long as they receive overtime when they work more than 40 hours in a week.

ANY employee can legally be paid on an hourly basis, regardless of whether or not their job duties qualify as exempt or not. Someone who qualifies as exempt can legally be paid as if they were non-exempt.

On the other hand, an employee who does not qualify as exempt cannot be paid that way. A non-exempt employee can be paid on a straight hourly basis, or on a salaried basis with overtime when worked, but not on a straight salaried basis.

We do not have enough information to know if he qualifies as exempt or non-exempt. However, here are the options:

If he is exempt:

a.) He can be paid on a straight salaried basis
b.) He can be treated as non-exempt and paid by the hour; however by doing so they are opening themselves up to a claim on his part for overtime.

If he is non-exempt:

a.) He can be paid on an hourly basis; straight time for the first 40 hours in a week and overtime for every hour after that
b.) He can be paid on a salaried basis any time he works 40 hours or less, and his salary plus overtime when he works more than 40 hours in a week

But regardless of whether he is exempt or non-exempt, they can't go changing him back and forth whenever it's convenient for them. If they decide to treat him as exempt, he MUST be paid his full salary for every week, regardless of how many hours he works, with only very limited and highly regulated exceptions. If they decide to treat him as non-exempt, they do not have to pay him for any time he does not work, but they MUST pay him for each and every hour that he works plus overtime at the rate of time and a half for every hour over 40 that he works in a single week.

They are not legally required to pay him for his leave time; however, if they require him to make up the time he must be paid for it.

Thank you for responding so quickly. This information is very helpful to us. If his boss decides to not follow the rules (whether he is exempt or non-exempt) what course of action should we be taking, besides finding another job?
Thanks again
Beckie

File a complaint with the state Department of Labor.