Kathleen, GA asked in Employment Law for North Carolina

Q: If my position went from exempt to non-exempt. Are we owed back pay for working overtime when exempt?

Prior to changing us to non-exempt we were required to attend Conferences that lasted well past our normal business hours. When not at conference or trainings we couldn't go over 40hrs but at these events we worked 50 - 60 hours without additional pay. Is that legal?

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1 Lawyer Answer
Kirk Angel
Kirk Angel
  • Knoxville, TN
  • Licensed in North Carolina

A: You cannot be switched between exempt and non-exempt by your employer as those are legal terms defined by the wage and hour laws. You are either one or the other unless there is a substantial change in circumstances (job duties change for example). In making the determination, the law focuses on the actual duties performed by the employee. If you are a non-exempt employee as defined by the law, then you are entitled to overtime pay for any hours worked in excess of 40 in a workweek. If you are an exempt employee as defined by the law, then you are not entitled to overtime pay.

Employers often try to pay employees a salary to avoid overtime. However, the employer must still pay for overtime, even if a salary is paid, if the employee's position is non-exempt.

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