Wage and Hour Issues

Wages and hours are governed by a combination of state and federal law. This includes what you should be paid for and the correct rate of pay, including appropriate commissions, bonuses, and tips.

Payment of Wages

South Carolina’s Payment of Wages Law governs the timing and manner with which employees are to be paid and provides powerful remedies for the employee who does not receive the salary or wages earned. The law also governs how changes to compensation must be made. The South Carolina Department of Labor Licensing and Regulation maintains a web site with important information regarding the payment of wages (including commissions) in South Carolina.

Being forced to work “off the clock” and not being paid for certain breaks are issues that may arise under both the Payment of Wages Law and the FLSA (described below).

Overtime Pay

There is considerable confusion and misunderstanding as to when an employer must pay overtime. Many employees simply accept their employer’s statement that they are “exempt” or “non exempt” in concluding whether they should be paid overtime.

The Fair Labor Standards Act (“FLSA”) generally requires that covered pay employees one and one-half (1½) times the normal rate of pay for all hours worked in excess of forty (40) in a work week. The law does not require overtime to be paid on a daily basis (e.g. after eight hours in a day). Nor does it require additional pay for Sunday work.

For most employers, the FLSA does NOT allow “comp time” or “banking hours” to carry over to another pay period.

What constitutes a “normal rate of pay” also is an issue that must be looked at on a case-by-case basis. For example, many types of bonuses and other payments to an employee should be considered as part of the rate of pay for purposes of figuring out the overtime rate.

With the exception of outside salespersons and some computer professionals, the FLSA allows covered employers to avoid paying you overtime only if: (1) the employee is paid on a salaried basis; and (2) the employee performs exempt-level work.

Generally, an employee will be considered to be paid on a salary basis if he or she regularly receives all of his or her compensation on a weekly, or less frequent basis, which is not subject to reduction because of variations in the quality or quantity of work (e.g. number of hours worked).
Exempt work includes work performed “in a bona fide executive, administrative, or professional capacity . . . or in the capacity of outside salesman.” These four general exemptions are often referred to as the “white collar exemptions” and apply to almost all covered employers.

Each of these exemptions has particular requirements that are too involved to set out in this summary. Also, it is not possible to discuss how these exemptions apply to every particular case because each situation is unique. In many situations, a job must be analyzed under more than one exemption to determine whether the individual is performing exempt work. A wage and hour law attorney can assist with this analysis.

What is important to remember is that, in order to be “exempt,” the employee must be performing exempt-level work AND must properly be paid on a salaried basis. Otherwise, a covered employer must pay overtime.

To discuss your legal questions regarding wages, hours, and overtime, contact Stephenson & Murphy.