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Exempt non-exempt salaried employee question New York City

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  • Exempt non-exempt salaried employee question New York City

    I am in a bit of a bind here and would love some help. Currently I'm am working out of NYC with a company and since I am new to the state I am looking to determine if this is legit.

    Background information:

    My pay scale is $600/wk + per deim @ $80/day (when not in NYC) and I work in a "creative industry" where I think it could be argued effectively that a portion of my work falls under the creative professional. The problem within this is that the remainder of my contract falls in a position that is expressly not creative and has a standard union in most states that have set a standard of pay in an hourly structure.

    Normally this would not be an issue as I am above the cutoff ($536.xx in NY I think) for an exempt employee, but currently we are slated to work 7 days a week for a total average of roughly 60-70 hours. In addition to this the hours will on occasion break 90 (which it did in one week that I recorded).

    Per this I have the following questions:
    1) Am I entitles to minimum wage pay per/NYC when working at a rate that would be below that.
    2) Is my employer or myself responsible for the tracking of hours
    3) Is there an upper limit on the amount of hours worked by an exempt employee or is this determined by the minimum wage?
    4) Does Manhattan (since this is where our office is located) have a higher minimum wage than that of New York state? Does this apply if I am working for the company, paid by the company in the State of NY by direct deposit, but working in a theater in Alabama for two days?

    I appreciate the time and look forward to a reply,

  • #2

    If the job were to fall under exempt status but I were working enough hours to qualify for a minimum wage violation (we do work long days) would the calculation be as an exempt minimum wage employee (aka: 600/7.25) or would it be at the rate of a minimum wage employee working overtime to those hours? Obviously one would accumulate much faster than the other.

    Thanks again,


    • #3
      This is going to be a partial answer. I did not answer your first question because I have not worked with the "creative" version of the Professional exception and am not very comfortable with it. I cannot say for sure whether or not you are really Exempt, which was your original question. I can give you some web pointers. The first is to the White Collar exceptions, which includes the rules for the Professional exception. The next pointer is to the federal DOL's opinion letters. If I was interested in researching this issue, that is one of the areas I would check. I will also include a pointer to the federal DOL Field Operation Manual, which is another area to research this issue.

      Regarding your other questions, if we are talking federal law only, if you legitimately qualify for the Professional exemption, then it does not matter how many hours you work in the week, and minimum wage is completely removed from the table. Also under federal law, if you are legitimately Exempt Salaried, then there is no federal legal requirement that the employer track hours worked.

      Your state is not my state. I have no opinion on NY state law. The fact that your job apparently involves travel to other states gives me even less reason to have an opinion on the law of other states on this issue. Generally other state's main issue is to get the income (and taxes) for work done in their jurisdictions.
      "Reality is that which, when you stop believing in it, doesn't go away".
      Philip K. **** (1928-1982)


      • #4
        Thank you for this links to the information. This begs a second question, considering this employment is temporary (5 month tour with a set expiration date) would the qualifications at a federal level be calculated at the weekly rate ($455) or would the calculation be based on the yearly earnings? My assumption is that is would be by week--but assumptions are just that assumptions.

        Again, the primary concern here is the exempt status (we had a 90 hour week and it looks like mismanagement of this situation so far will result in several other weeks in overages above 70 hours). I am simply looking to protect myself from working under minimum wage. Additionally, if it is determined that I am exempt, what is the situation/legality of layoffs? Considering the contract I am under we had a three-week layoff in December (no salary) and then we continue in January. This position is terminated in late May. Do these constrictions provide any possibilities for exempt/non-exempt determination? I ask because I worked on a "Day rate" in December, but it would appear that an exempt employee would be paid weekly no matter the hours/days worked in that week. If that is the case I am owed the backed salary and that would make the difference up for the ridiculous hours worked in weeks previous essentially nullifying my complaint.

        Thanks for the help
        Last edited by dbc; 01-10-2009, 12:45 PM. Reason: Additional Information!