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Human Resources/Mistakes in Job Offer Letters



I started a new job in October 2013. Although the salary was about $12,000 lower than I was making in my previous position, I accepted because the offer letter stated that I would be a "Salaried non-exempt employee", eligible for overtime.  In addition, I negotiated an 8% bonus and an additional week of vacation.  I felt that I would makeup the low salary with the overtime.  

After about 4 pay periods, I noticed that I wasn't receiving any overtime, even though I had been working additional hours over 40.  I contacted Human Resources and they told me that my position was classified as non-exempt.  Then, I contacted the recruiter who wrote the offer letter, and he stated that he made a mistake.  

About 6 months have gone by and I am very troubled by these events, because this affects my future earnings.  I fully expected to make the overtime pay.  Currently, I work an average of about 58 hours a week and am becoming so unhappy.  

Is there anything I can do to make the company honor their written agreement?  I have the official offer letter and the emails from Human Resources and the Recruiter concerning the mistake in my job classification.

ANSWER: Non exempt is hourly and must be paid overtime.  I assume that you are classified as an exempt employee which is exempt from overtime.

There are specific criteria that must be met to be an exempt employee and exempt from overtime. If your job duties match than your job would be exempt. If the duties do not match you must be paid as non exempt including overtime.

The FLSA (Fair Labor Standards Act) set the law for exempt and non exempt employees.

It depends on the duties of your job. There is certain criteria that must be met to take the salaried exemption. If that criteria is not met than you should be paid hourly not salaried and you should be paid overtime.

The above will explain the difference between exempt and non exempt which we commonly call Salaried and hourly.  Although you can be salaried and still earn overtime if you are non exempt salaried.

The above website will tell you how to file a complaint with the DOL for a violation of the FLSA rules.

You can also call your local department of labor and ask for your job to be evaluated as to whether it is Exempt or Non exempt. If the department of labor evaluates your job as non exempt they will contact the company and say that you must be paid overtime.


---------- FOLLOW-UP ----------

QUESTION: Thanks for answering my question.  I would most certainly be classified as an exempt employee since I work in Information Technology.

I guess what I wanted to know is if the employer is required to pay me overtime since it was written in the Offer Letter that I would be a non-exempt employee.  Doesn't the Offer Letter hold any weight, or is it just a piece of worthless paper?


If you had a signed contract you could sue for breach of contract. An offer letter is not a signed contract. An offer letter really does not hold weight with legal issues. The employment laws do not cover offer letters or recruitment issues. What they cover are simply minimum wage and discriminatory issues. Raises, bonus's, shifts worked, these are all between the employee and the employer unless they breach the employment laws.

The essential differences between a contract and an agreement are minor. In essence, a contract’s outline is more formal and more rigidly presented than the terms outlined in an agreement.  A contract is a legally binding agreement reached between two parties, the terms of which the courts have the authority and obligation to enforce. An agreement is a less formal creation of an obligation between the two parties.An agreement usually lacks one or more of the essential elements that are required to be present in order to form a valid contract that will be considered legally enforceable by a court of law.

The essential difference between an agreement and a contract is that typically an agreement will only modify a contract that is already in place but does not place an obligation on either one of the parties to provide consideration to the other party, which a contract requires. A contract can involve the exchange of promises between the parties to the contract, while an agreement may simply involve one party accepting the offer from another party.

Offer letters are not employment contracts. That means your employer is free to terminate your job at any time – including before you officially start the job. In most cases, you’ll be owed no compensation for any time other than the actual time you worked. But it also means you are free to walk away from the job at any time.

I know it is not what you wanted to hear and you have the right to contact your local Department of Labor and discuss it with them. You also can find an employment attorney that will give you a free consultation and discuss it with him.


On another note I might add that the President is working toward more employees being paid for overtime. He signed an executive order but it only appies to Federal Employees contracting with the Federal Government. He is working on getting it raised for other employees as well. i haven't seen any guidance from the DOL on his new legislation so not sure exactly what it contains. You might call the DOL and ask where the current threshold is for Exempt IT employees. If you are being paid below the threshold they either have to raise your wages to the threshold or make you non exempt and pay you overtime.


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Shirley McAllister, CPP, PHR


I can answer questions pertaining to Compensation, Health Benefits, Retirement Plans, Payroll,Payroll taxes, Employee selection, Employee Termination, Training, and Employee Incentives. I have offices in U.S., Canada, UK, South Africa,Australia and NZ. I am most confident in the U.S. and Canadian but have knowledge of the internationals. I do not have extensive knowledge of South Africa, Australia and New Zealand. I do have some Human Resource Knowledge in those areas. Please do not ask me homework questions, I do not have time to answer them.


I currently hold both the U.S. and Canadian Payroll Certifications. I currently hold the SHRM PHR certification. I have worked in the Human Resources area with high emphasis on compensation and benefits for 25 years at the same company. My company is an international company and I work with our International offices whenever there is a Human Resource area needing addressed. I volunteer on the American Payroll Association hotline and have for the last 10 years or so. I answer many questions each week for other payroll and HR professionals, mostly on taxes, benefits and compensation issues. I have been the trustee for our 401K plan for Retirement benefits and our 125 Cafeteria Plan for Health Insurance benefits.

SHRM, National APA, National DOLEA, State National Mentoring Network I.O.M.A. Advisory Board


Boise State University Human Resource Certificate Program PHR through SHRM CPP through American Payroll Association Payroll Administrator and Payroll Supervisor certification through Canadian Payroll Association Published writer of Payroll and Benefit articles in a payroll Publication 25 years experience in an International Company

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Citation of Merit 8 years in a row for hotline service for A.P.A. Honor Award for child mentoring service through RSVP and National Mentoring A "Pat on the Back" award for outstanding leadership as a Youth Group Leader by "The Salvation Army." Runner up for Employee of the Year at my Company twice and Employee of the month 4 times.

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I used to answer questions on when they had a similar quesition and answer section. I volunteer for APA hotline I also belong to several HR forums when I often answer questions

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