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Employment Law Alert – Reminder For Employers – Salaried Nonexempt Employees Are Entitled to Overtime Pay

May 19, 2022

The U.S. Department of Labor (“DOL”) recently issued a press release that a pest control company violated the Fair Labor Standard Act’s (“FLSA”) overtime requirements by paying its nonexempt employees a fixed salary, regardless of the number of hours they worked. The DOL also found that the company failed to maintain records of hours worked by nonexempt employees. The DOL’s investigation resulted in the recovery of back wages and liquidated damages for the employees.

This press release serves as a reminder for employers that salaried nonexempt employees remain entitled to overtime pay for all hours worked over 40 in a workweek. Employers also must keep accurate records of the number of hours worked by non-exempt employees each day and each workweek.

The fluctuating workweek method is an alternative method of calculating overtime for nonexempt salaried employees. Under the fluctuating workweek method, nonexempt employees receive a set weekly salary no matter how many hours they work, plus additional overtime pay when they work more than 40 hours in one workweek. For example, an employee is paid the same weekly salary whether the employee works 30 hours or 45 hours. However, when the employee works more than 40 hours in a week, the employee receives additional overtime pay for each hour of work over 40 hours. It is important to note that several states, including Alaska, California, New Mexico and Pennsylvania prohibit employers from using the fluctuating workweek method to pay overtime.

If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work.


Meredith “Merry” Campbell

Joy C. Einstein

Alexander I. Castelli

Drew Ricci 


The contents of this Alert are for informational purposes only and do not constitute legal advice. If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work or a member of the Shulman Rogers Employment and Labor Law Group.


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