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Wage Payment

Overtime and Payment of Wages claims
Both state and federal laws provide protections for an employee’s right to receive compensation. Federal law generally sets minimum standard for wages and payment of overtime, while state law governs when and how employees are paid and provides additional remedies for situations in which employers do not pay as promised.

Wage Payment matters
South Carolina’s Payment of Wages Law governs the timing and manner of an employee’s pay and provides remedies for an employee who does not receive the salary or wages s/he earned. Our state law also governs how changes to compensation must be made.

Employers are required to notify employees at the time of hire, or at least post, the time and place of payment, and the employee’s rate of pay. The employer must give seven days prior written notice of any changes to these terms and conditions (except for increases in pay). At termination, vacation and other accrued benefits must be paid out in accordance with any provision of the employer’s policies.

Often Payment of Wages issues arise regarding certain deductions from a paycheck. In order to make a deduction, the employer must have provided the prior written notice that wages would be subject to the deduction. The employer must be careful to ensure that the deductions do not take the employee below the allowable minimum wage.

An employee may sue in court to recover any amounts owed. If the employee can convince the judge that there is not a bona fide dispute about whether the amounts are owed, the judge may award attorney fees and even triple the amount owed (referred to as “treble damages”).

Overtime Pay
There is a lot of confusion among employees 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. There are some exceptions to a seven-day workweek for certain health care workers (if overtime paid on a daily basis) and for police and firefighters. The law does not require overtime to be paid on a daily basis (e.g. after eight hours in a day). It also doesn’t it require additional pay for Sunday work. Contrary to popular belief, the law does not regulate working hours and does not require or regulate breaks (except for child labor). Your employer can work you as much as you can bear, so long as they properly pay you for the same.

Except for public employers, the FLSA does NOT allow “comp time” 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 overtime only if: (1) the employee is paid on a salaried basis; and (2) the employee performs exempt work. Generally, an employee will be considered to be paid on a salary basis if he or she regularly receives all 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 quite involved. 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.

Job titles and other designations by the employer do not govern whether the employee is exempt. Likewise, the employee’s failure to object, his or her agreement to an improper salary arrangement, or a lack of awareness that his or her rights have been violated do not bar a claim.


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