We are a not-for-profit nursing home.  We have part time and full time RN supervisors.  Our part time supervisors work 32 or 36 hours per week.  Because they are not full time, they “clock” in and are eligible for OT whereas our full time supervisors do not clock in and do not get OT if they work over 40 hours.  Can a part time supervisor be considered salaried exempt and only be paid for the hours scheduled (32 or 36) or must they be paid for the hours worked?? 

Exemption status is dependent on the position description, not number of hours worked.  If you are sure your fulltime RN Supervisors are exempt, then your part-time ones should be exempt as well if they all have the same position and are doing the same work.  You really need to do an FLSA audit of these positions since you could very well have these positions classified incorrectly, and may owe the fulltime RN Supervisors overtime as well.

 

Thank you!!!  I'm 99.5% sure the supervisors have been classified correctly because of the nature of their work so . . . if our part time supervisors are scheduled for 36 hours during a week and work 38 hours, because they are exempt, they should be paid for 36????

The point is that the job, because of its duties, is either exempt or non-exempt from the overtime and minimum wage provisions of the Fair Labor Standards Act.

If you have two people doing the same job and you pay them differently because of the number of hours they work, then it brings into question whether or not the salaried individuals are paid appropriately.  That is, it can open you up to a wage and hour claim if they successfully argue that they are not exempt.  My advice is to pay them both on a salary basis or pay them both on an hourly basis.

You can make a blanket policy that all part time people are paid on an hourly basis, that's been discussed here before, but I'm not comfortable with that in this situation for a number of reasons.  Here are some of the more important ones.  First, the hour difference isn't that great.  This is not 40 hours versus 20 hours.  Second, the part time hours worked standard is so close to 40 that you could very easily end up with some people getting overtime and other people not getting over time even though both groups worked the same number of hours.  That sort of schizophrenic approach to compensation will certainly raise an eyebrow as to whether these people are being paid for their time or being paid on a salary basis because of the nature of their work.  Clearly some are being paid for the time, attorney for the plaintiff will argue, and that opens the door.  Third, different aspects of the nursing profession are currently and have been for some time in the center of debates in terms of both FLSA and NLRA status.  In my opinion, you are inviting disaster simply because the profession you are dealing with is regularly scrutinized.  Even if the employees themselves are satisfied by the pay plan and would not complain on their own, a third party (such as a labor organization) could get the DOL involved.

I agree with the other two posters that you really need to look at this situation.  You are essentially paying employees that are doing the exact same job in different ways.  You need to first answer the question - is this job exempt or non-exempt?  Then you need to pay both groups in the same manor - either hourly or salaried. 

What does your policy say about what qualifies as a full time employee?  If it ends up that these supervisors should be paid salary then you need to decide what to do with those that are only working 36 or 38 hours.  Why are some working this schedule and others not?  Can you put everyone on consistent schedules so they are all working about the same number of hours - 40 hours?

 

The job is exempt.  For whatever reason, the Director of Nursing has allowed supervisors to work on a part time basis so I can not schedule them all of the same number of hours.  (FT is 37.5  - 40 hours per week).  It appears that it would be best to pay them for hours worked. 

 

It's never wrong to pay a person in an exempt role on an hourly basis.  The exact opposite is also true.

The problem is that the status of a position vis a vis being exempt can be ruled on a case-by-case basis.  While it's true that we've said that it's the job duties that makes a role exempt or not, that's not really true.  There are three things that have to be true.  First is the duties test.  If you can't past the duties test, you are done.  The second is the salary threshold level.  You have to pay them enough.  The third is the salary basis test.  You have to pay them on a salary basis.

On a case-by-case basis, in examining your situation, a court may agree that, under the duties test, your supervisors are exempt.  The same hypothetical court may also agree that incumbants in the role are paid enough money.  Now, in this case-by-case examination, it is seen that people who perform the same jobs with the same titles are not all paid on a salary basis.  There is no escaping the fact that this can lead to the conclusion that the job is not exempt because the company is really paying people for time and the people who are more likely to work overtime are being denied it.  That is a textbook case of salary basis litigation challenging exempt status.