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.
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.
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.
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.
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.
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.
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?
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!
Heh. That’s so complex that guys like me have to hire guys like him to figure it out. But here’s 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.
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.
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.
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?
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.
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.
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.
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.
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.
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.