Are You a Salaried Employee If You are Paid by the Hour?

Under California law, employers must pay workers overtime when work is performed: 1) over forty hours in a workweek; 2) over eight hours each day; or 3) on the seventh consecutive day in a workweek. However, employees that fall under the professional, executive, and administrative exemptions may be excluded from earning overtime compensation. For an employer to claim that its employee falls within these exemptions, the employee’s work conditions must satisfy both the “salary basis” and “job duties” test. The purpose of this article is to discuss the legal requirements of the “salary basis” test.

Although it is commonly understood that a salary is a fixed amount of pay, the legal definition of a salary is much more complex. These requirements are set forth in the “salary basis” test. To constitute a salary, an employee must be paid: 1) a set amount of compensation; 2) that is not subject to any reductions or variations. If an employee’s compensation fails to satisfy this test, the employee must be paid overtime. Employers cannot avoid paying overtime by improperly labeling an employee’s pay as a salary.

What is a Salary?

In Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, the California Sixth District Court of Appeals held that a salary must be a predetermined amount of pay that is not subject to reductions or variations. However, there are specific exceptions, which are related to absences, under the Code of Federal Regulations[1].

The key issue in this case is whether a compensation system based on an hourly rate of pay qualifies as a salary. Mark Negri, the Plaintiff, was an insurance adjuster employed by Koning & Associates. He was paid an hourly rate, twenty-nine dollars per hour, with no guarantee of the minimum number of hours to be worked. Whenever Mr. Negri worked more than forty hours in a workweek, his employer only paid him at his hourly rate instead of an overtime rate of one-and-one half times his hourly rate. His employer argued that Mr. Negri was not entitled to overtime pay because he was an exempt administrative employee.

Mr. Negri argued that he was entitled to overtime pay, because his compensation structure did not comply with the “salary basis” test. Due to being paid on an hourly basis, his pay was not fixed because it fluctuated based on the number of hours worked each week. In contrast, his employer argued that Mr. Negri was paid a de facto salary because he always worked sixty hours each week. Therefore, his salary was fixed because it was predetermined and not subject to reduction or variation. Furthermore, Mr. Negri’s employer emphasized that it never reduced Mr. Negri’s de facto salary by reducing his workload.

Due to a technical nuance that occurred during the lawsuit, the appellate court held that Mr. Negri was not paid a salary. As the case proceeded through litigation, both the employer and Mr. Negri stipulated that it never paid Mr. Negri a fixed amount of compensation. A stipulation is when a piece of evidence is submitted to the court as the truth. In the stipulation, the employer stated, “[I]f he [Mr. Negri] worked fewer claims ‘he made less money than if he worked more claims.’” Essentially, the employer admitted that Mr. Negri was never provided a fixed amount of pay because it was possible for his compensation to change based on the number of hours he worked. Despite Mr. Negri prevailing on his claim, the appellate court noted that employees with a fixed salary may receive extra payment without losing their exemption.


As it stands, a salary is a predetermined amount of pay: 1) that is not subject to reductions or variations; and 2) twice the state minimum wage. However, employers may pay an exempt employee additional compensation beyond the predetermined salary. An example of this is a salaried employee who receives two thousand dollars bi-weekly, but also receives additional pay that is lower than the minimum wage for each hour worked over forty hours a week.

If you feel that you have not been paid your rightful wages, please feel free to contact Hunter Pyle Law for a free consultation at (510) 444-4400 or

[1] 29 C.F.R. § 541.602(b)