# Dude, where's my overtime? **URL:** \ **Category:** Great Debates\ **Created:** [February 1, 2004, 5:01pm UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049 "2004-02-01T17:01:14Z")\ **Posts on this page:** 18\ **Page:** 2
**Author:** ![E72521](https://avatars.discourse-cdn.com/v4/letter/e/dbc845/32.png) [@E72521](https://boards.straightdope.com/u/E72521)\ **Post date:** [February 2, 2004, 5:41pm UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/21 "2004-02-02T17:41:03Z")
Back to the union issue… Say that you live in a right-to-work state, like Florida. You are a physical therapist working in a health care facility and a member of a bargaining unit. You are forbidden by law to strike. Same would go for a police officer, I’m sure. Comes the time that your contract expires and your union sits down with your employer to negotiate. Your employer tells your union that overtime is not on the table. What leverage is left for the union to press for OT? Will all the police officers and physical therapists that want OT quit? Will they run to the next health care facility or municipality? Will their chances there be any better? My answer is NO. The market will take care of the situation all right. The market simply will say it is no longer the standard to pay OT. Take it or leave it. I see this as a very realistic scenario, especially in municipalities that are hard pressed to meet the fed’s mandated homeland security unfunded mandates, and in health care facilities that are fighting to keep their already thin margins in the black. Thoughts? ---
**Author:** ![Lynn\_Bodoni](https://avatars.discourse-cdn.com/v4/letter/l/e47c2d/32.png) [@Lynn\_Bodoni](https://boards.straightdope.com/u/Lynn_Bodoni)\ **Post date:** [February 2, 2004, 7:15pm UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/22 "2004-02-02T19:15:35Z")
> [@](#): > > And yet we are all exempt, and all of us put in more than 40 hours a week, sometimes quite a bit more. And if I have a doctor appointment during the workday, I have to use leave time for it. Am I owed about a zillion dollars in back wages, even if the law is changed for future work? You know, that MIGHT be a good determination…if someone has to use leave time to do something for a few hours during a normal business day, then that person is not exempt. ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [February 2, 2004, 7:54pm UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/23 "2004-02-02T19:54:41Z")
> [@porkchop\_d\_clown](#): > > lucwarm, since you indicate some skill in this area, perhaps you can clear something up for me: I thought salaried employees were _always_ exempt from overtime - that you only got overtime if you punched a clock. > > Is that not true? Nope it ain’t true. Being salaried is a necessary condition for being exempt from overtime, but not a sufficient one. A few examples: (1) Fred has been a machine operator for several years. His boss pays him a set salary of $500 per week. He generally works 40 to 50 hours per week. Fred probably has a good overtime claim against his employer. (2) Nancy is the head of Human Resources at General Motors. She is paid $104k per year and is expected to work 50 hours per week. Thus her normal gross weekly pay is approximately $2000. If she works only 38 hours in a week, she is paid only $1520 for that week. Nancy probably has a decent overtime claim against GM. The point is that to be exempt from overtime, you must (1) have job duties that make you exempt; AND (2) be paid a salary. Generally speaking of course. Complicated rules define what constitutes a salary and what are exempt job duties. * * * Now, you may notice that overtime claims have the interesting side effect of frustrating the parties’ expectations. Fred may have agreed with his employer that he wanted a predictable salary of $500 per week and was willing to forgo overtime to get it. Perhaps before he was put on salary, he made $10.00 per hour and his pay fluctuated between $400/wk and $550/wk and he was happy, and better off on average to get a weekly salary of $500. This is necessary, because legislators are well aware that there is (usually) an inequality of bargaining power between employees and employers. Once Fred is on salary, his boss will be tempted to pressure Fred to work 50, 60 or more hours per week and it will be difficult for Fred to say “no.” Indeed, a fundamental principle of modern liberalism is the recognition that if people in a totally free market, people with wealth, intelligence, and/or sophistication will take advantage of people who are poor, unsophisticated, and/or not too bright. And that it is proper for the government to step in and protect these people. ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [February 2, 2004, 7:54pm UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/24 "2004-02-02T19:54:54Z")
> [@porkchop\_d\_clown](#): > > lucwarm, since you indicate some skill in this area, perhaps you can clear something up for me: I thought salaried employees were _always_ exempt from overtime - that you only got overtime if you punched a clock. > > Is that not true? Nope it ain’t true. Being salaried is a necessary condition for being exempt from overtime, but not a sufficient one. A few examples: (1) Fred has been a machine operator for several years. His boss pays him a set salary of $500 per week. He generally works 40 to 50 hours per week. Fred probably has a good overtime claim against his employer. (2) Nancy is the head of Human Resources at General Motors. She is paid $104k per year and is expected to work 50 hours per week. Thus her normal gross weekly pay is approximately $2000. If she works only 38 hours in a week, she is paid only $1520 for that week. Nancy probably has a decent overtime claim against GM. The point is that to be exempt from overtime, you must (1) have job duties that make you exempt; AND (2) be paid a salary. Generally speaking of course. Complicated rules define what constitutes a salary and what are exempt job duties. * * * Now, you may notice that overtime claims have the interesting side effect of frustrating the parties’ expectations. Fred may have agreed with his employer that he wanted a predictable salary of $500 per week and was willing to forgo overtime to get it. Perhaps before he was put on salary, he made $10.00 per hour and his pay fluctuated between $400/wk and $550/wk and he was happy, and better off on average to get a weekly salary of $500. This is necessary, because legislators are well aware that there is (usually) an inequality of bargaining power between employees and employers. Once Fred is on salary, his boss will be tempted to pressure Fred to work 50, 60 or more hours per week and it will be difficult for Fred to say “no.” Indeed, a fundamental principle of modern liberalism is the recognition that in a totally free market, people with wealth, intelligence, and/or sophistication will take advantage of people who are poor, unsophisticated, and/or not too bright. And that it is proper for the government to step in and protect these people. ---
**Author:** ![porkchop\_d\_clown](https://avatars.discourse-cdn.com/v4/letter/p/3bc359/32.png) [@porkchop\_d\_clown](https://boards.straightdope.com/u/porkchop_d_clown)\ **Post date:** [February 2, 2004, 11:51pm UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/25 "2004-02-02T23:51:14Z")
> [@lucwarm](#): > > Nope it ain’t true. Being salaried is a necessary condition for being exempt from overtime, but not a sufficient one. … Excellent explanation. Thanks, lucwarm. ---
**Author:** ![Eva\_Luna](https://avatars.discourse-cdn.com/v4/letter/e/e495f1/32.png) [@Eva\_Luna](https://boards.straightdope.com/u/Eva_Luna)\ **Post date:** [February 3, 2004, 12:02am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/26 "2004-02-03T00:02:06Z")
**lucwarm,** since you seem to know this stuff, what are some more borderline situations, and how were they decided? Especially ones that relate to exempt employees who were later determined not to be exempt from overtime? Inquiring minds want to know. I’m not necessarily looking for case cites, but if you can think of a couple of situations off the top of your head, that would be very helpful. ---
**Author:** ![Green\_Cymbeline](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/green_cymbeline/32/9244_2.png) [@Green\_Cymbeline](https://boards.straightdope.com/u/Green_Cymbeline)\ **Post date:** [February 3, 2004, 12:07am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/27 "2004-02-03T00:07:46Z")
> [@manhattan](#): > > Basically, under the old rules an employee is “exempt” (i.e., not protected by federal overtime rules) if s/he is a supervisor – that’s why I called the $22,100 rule the McD’s asst. manager rule. Basically, a lot of employers would give some employees like “assistant manager” or “team leader” or some such BS and what it basically meant was “you can close up the store and we don’t have to pay you overtime.” Well fucking A. This has been bothering me for a while now. At my current job I am a legislative analyst and the “team leader.” I am salaried and get no overtime pay, even though I work a shitload of overtime. My teammates, who are also analysts, are also salaried, and get no overtime either. We are by no means in supervisory roles. But yet we get no overtime. OH, but if we need to take off two hours early, we have to take leave. It doesn’t matter that we worked overtime every other day of the week. This fucking sucks. But there’s nothing I can do about it. Besides this, I really love my job, but I really could use the overtime pay. Doesn’t seem fair at all. Same thing happened at my last job. I was a copy editor and got promoted to “assistant news editor,” which was exactly the same thing. Guess what? I lost my overtime pay then too, because I was now salaried with my fancy new title. So I worked a shitload of overtime and didn’t get paid for it. In this economy, you’re just glad to have a job, so you just suck it up and do it. ---
**Author:** ![Green\_Cymbeline](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/green_cymbeline/32/9244_2.png) [@Green\_Cymbeline](https://boards.straightdope.com/u/Green_Cymbeline)\ **Post date:** [February 3, 2004, 12:13am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/28 "2004-02-03T00:13:41Z")
> [@manhattan](#): > > Also, please correct me if I’m in error here: For non-supervisory employees, even those making over $65,000, aren’t employers still required to offer comp time? That was my recollection of the interpretation of the regs last time I took a close look, but of course both interpretations and regs can change with time. See my post above. Does anyone think what my employer is doing is illegal? We clearly are not supervisory, yet we don’t get overtime or comp time and work a shitload of overtime. Does anyone know? ---
**Author:** ![Green\_Cymbeline](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/green_cymbeline/32/9244_2.png) [@Green\_Cymbeline](https://boards.straightdope.com/u/Green_Cymbeline)\ **Post date:** [February 3, 2004, 12:21am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/29 "2004-02-03T00:21:22Z")
> [@Lynn Bodoni](#): > > You know, that MIGHT be a good determination…if someone has to use leave time to do something for a few hours during a normal business day, then that person is not exempt. **Lynn** , so in my case, (see above), would the same apply? I am exempt, salaried, and get no overtime. I work a ton of overtime. Yet if I need to take off two hours for a doctor’s appointment, I have to fill out a leave form. It doesn’t seem right to me. Can anyone please advise? This is making me very angry. Especially considering we are just the working ants of the company, we should not be exempt inthe first place! ---
**Author:** ![manhattan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/manhattan/32/7_2.png) [@manhattan](https://boards.straightdope.com/u/manhattan)\ **Post date:** [February 3, 2004, 12:24am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/30 "2004-02-03T00:24:24Z")
> [@Eva Luna](#): > > **lucwarm,** since you seem to know this stuff, what are some more borderline situations, and how were they decided? Especially ones that relate to exempt employees who were later determined not to be exempt from overtime? Inquiring minds want to know. I’m not necessarily looking for case cites, but if you can think of a couple of situations off the top of your head, that would be very helpful. Heh. That’s so complex that guys like me have to hire guys like him to figure it out. But [here’s](http://hr1.blr.com/Article.cfm/Nav/1.40.152.0.29052.29052#1) a basic overview of the kinds of questions that are considered for overtime exemption purposes. There are other tests for other kinds of exemption purposes. ---
**Author:** ![manhattan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/manhattan/32/7_2.png) [@manhattan](https://boards.straightdope.com/u/manhattan)\ **Post date:** [February 3, 2004, 12:32am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/31 "2004-02-03T00:32:08Z")
> [@nyctea scandiaca](#): > > See my post above. Does anyone think what my employer is doing is illegal? We clearly are not supervisory, yet we don’t get overtime or comp time and work a shitload of overtime. Does anyone know? I’ll let **lucwarm** opine (well, not opine of course – he’s a lawyer but not _your_ lawyer, but weigh in). I’ll just add that at a strict compliance shop like mine you’d almost certainly be entitled to overtime. It sounds like your job is sufficiently “administrative” that it might qualify for exemption on its face – while you don’t have supervisory duties, it sounds like you exercise a good deal of independent judgement. But our general rule (which, again, may or may not be more strict than federal requirements) is that if you have to take leave to be gone during the day, you get paid for overtime to the extent that total hours are more than the 40 or 45 hour threshold or whatever it is. ---
**Author:** ![Green\_Cymbeline](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/green_cymbeline/32/9244_2.png) [@Green\_Cymbeline](https://boards.straightdope.com/u/Green_Cymbeline)\ **Post date:** [February 3, 2004, 12:38am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/32 "2004-02-03T00:38:05Z")
Thanks for that link, **manhattan.** I learned a lot. First of all, I think it is correct that I am considered an exempt employee under the tests. But where my boss is screwing me over is how we work a ton of overtime, but if we take a couple of hours for a doctor’s appointment or whatever, we are required to fill out a leave form and take leave. This seems to be not permissible according to the article…please tell me if I am correct. > [@](#): > > Theory behind exemption. Unlike nonexempt employees who are paid for working a specific number of hours, exempt employees are paid to get a job done. They receive the same salary regardless of how few or how many hours they work in a week. > [@](#): > > Deductions may be made, however, when the employee is absent from work for a day or more for personal reasons other than sickness or accident … If an employee is absent for less than a day, he or she must be paid for the full day. > [@](#): > > Exempt employees should never be docked for less than a full day, because to do so would require calculating an hourly wage. What should I do? It’s never seemed fair. I can work 50 hours a week and be paid the same, but if I take off one hour to go to an appointment, I have to take leave. I am thinking of bringing this up to my HR person. Do you think I should? ---
**Author:** ![Daikona](https://avatars.discourse-cdn.com/v4/letter/d/8baadc/32.png) [@Daikona](https://boards.straightdope.com/u/Daikona)\ **Post date:** [February 3, 2004, 12:47am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/33 "2004-02-03T00:47:31Z")
> [@lucwarm](#): > > Disagree. I’m a labor lawyer, and of the hundreds and hundreds of clients I’ve had, I don’t recall meeting a single one who was paid less than $22,100/yr who was exempt from overtime. Not one. And in ten years, $22,100/yr will seem even more ridiculously low. > > Of course, I practice in New York City, where wages tend to be higher. Perhaps the threshold will make a difference in Georgia. But in New York, forget about it. That’s about twice what I made a year back when I actually _had_ a job. And I only got paid overtime if I was there longer for an official meeting which had been set up and cleared by administration ahead of time. If I was just there because we had a lot of work to do that night, I not only didn’t get paid _overtime_ for it, I didn’t get paid at all. ---
**Author:** ![LCP2972](https://avatars.discourse-cdn.com/v4/letter/l/8e7dd6/32.png) [@LCP2972](https://boards.straightdope.com/u/LCP2972)\ **Post date:** [February 3, 2004, 2:07am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/34 "2004-02-03T02:07:58Z")
[http://www.dol.gov/\_sec/media/speeches/541\_Side\_By\_Side.htm](http://www.dol.gov/_sec/media/speeches/541_Side_By_Side.htm) shows the current long and short form tests, vs the proposed new test for who is eligible and who is not. I’ve looked at it, and I’m still kind of confused. specifically about the computer workers propsed standard. * * * "$425 per week or $27.63 an hour Primary duty of (A) application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional applications; or (B) design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; or © design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (D) a combination of duties described in (A), (B) and ©, the performance of which requires the same level of skills. Employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field." * * * (A) sounds like tech support to me. I \ ***think** \* this means I get to stay hourly unless I, a. hit $27.63 an hour b. my employer decides to make me salary of at least $425 a week. does this sound right to anyone in the know? ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [February 3, 2004, 4:24am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/35 "2004-02-03T04:24:47Z")
> [@manhattan](#): > > I agree that regional wage differences are important. If you or someone else wanted to argue that the specific numbers set as threshold ought to be indexed to local wages or to inflation, that the standards ought to be set by state and local governments instead of of the feds or, Ghod forbid, that the market should take care of it is the subject of a legitimate debate. Are you saying one of these things?\*\* I’m basically arguing against the new regs as proposed. I do think they would be better if the thresholds were indexed to inflation though. Still unacceptable to me, but I’d be happier. And no, I don’t think the free market is satisfactory – the bargaining power is just too unequal. > [@](#): > > I’m a supervisor of a small department for a company in New York City. A very, _very_ compliant company. I recently had to spend several hours and several thousands of dollars of legal talent to establish that my analysts are “exempt.” That’s securities analysts. Guys I pay over $100,000 per year and who want my job someday. It’s crazy to me that it was even a question and that I had to expend time better spent serving my customers to establish it. There’s no question that the overtime laws – like any other regulatory scheme – result in some wasted effort and, well, silliness. But does the bad outweigh the good? It’s largely a matter of opinion, of course. But I doubt it. > [@](#): > > Also, please correct me if I’m in error here: For non-supervisory employees, even those making over $65,000, aren’t employers still required to offer comp time? That was my recollection of the interpretation of the regs last time I took a close look, but of course both interpretations and regs can change with time. Under the new regs? I have no idea. ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [February 3, 2004, 4:32am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/36 "2004-02-03T04:32:53Z")
> [@Eva Luna](#): > > And yet we are all exempt, and all of us put in more than 40 hours a week, sometimes quite a bit more. And if I have a doctor appointment during the workday, I have to use leave time for it. Am I owed about a zillion dollars in back wages, even if the law is changed for future work? Perhaps. I suspect there’s a lot of case law out there on whether paralegals can be exempted from overtime or not. Also, there are cases on whether “leave bank” systems can destroy the exemption. It’s a grey area of the law as I recall. ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [February 3, 2004, 4:40am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/37 "2004-02-03T04:40:18Z")
> [@Eva Luna](#): > > **lucwarm,** since you seem to know this stuff, what are some more borderline situations, and how were they decided? Especially ones that relate to exempt employees who were later determined not to be exempt from overtime? Inquiring minds want to know. I’m not necessarily looking for case cites, but if you can think of a couple of situations off the top of your head, that would be very helpful. Actually, I don’t know too much about borderline cases. I’m too busy dealing with flagrant violations!!! But look, if you think that your employer has misclassified you, you might call up the Department of Labor field office in your city. They might let you complain anonymously. For various reasons, I suspect a law firm would settle quickly. ---
**Author:** ![Lynn\_Bodoni](https://avatars.discourse-cdn.com/v4/letter/l/e47c2d/32.png) [@Lynn\_Bodoni](https://boards.straightdope.com/u/Lynn_Bodoni)\ **Post date:** [February 5, 2004, 8:25am UTC](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049/38 "2004-02-05T08:25:42Z")
> [@nyctea scandiaca](#): > > **Lynn** , so in my case, (see above), would the same apply? I am exempt, salaried, and get no overtime. I work a ton of overtime. Yet if I need to take off two hours for a doctor’s appointment, I have to fill out a leave form. It doesn’t seem right to me. Can anyone please advise? This is making me very angry. Especially considering we are just the working ants of the company, we should not be exempt inthe first place! Well, in your case, _I_ would not consider you eligible for a salaried position if you have to take two hours’ worth of leave. However, I am not any sort of legal expert. Nor am I in charge of enforcing the law. I’d second the notion of asking the Department of Labor. That’s what they’re THERE for. [Previous page](https://boards.straightdope.com/t/dude-wheres-my-overtime/227049.md?page=1)