First of all, you are not my lawyer, you are probably not even a lawyer, if you just happen to be a lawyer, you’re most likely not licensed in my jurisdiction. But no matter what, nothing you say or do can start any sort of client-lawyer relationship. I will see my own lawyer locally, to represent “My” interests, if I need to.
Now that the disclaimer is out of the way, here is my problem. I work for a major nationwide corporation. I am employed as an exempt, salaried, professional. This past pay period I only worked about 1/3rd of the time I normally do due to an unusual “Lack of work”. However, I was “Ready, willing, and able” to work if my scheduler asked me too. Since I was about 40 hours below my “guaranteed” hours, my name was sent in a report to the regional Vice President (My bosses boss). Since I had no vacation time remaining, he told my scheduler to put into payroll the missing hours as unpaid time, as would happen if “I” requested off when I was out of leave.
As I read the FLSA, this is not permissible, and puts my exempt status into jeopardy, which means if I sued they would have to pay all my overtime for the last 2 years… However, what I’m really wondering is:
Does it change anything that is was one person who made the decision, without HR, and even “lied” to payroll as the reason to bypass myself being paid?
As of right now, I am following the corporate complaint policy, by emailing my immediate boss (no response yet, but just sent the email a day ago, and I think he was out of office today dealing with Bigwigs). Should I wait to see a response or immediately contact an employment lawyer?
If I take this all the way, go to court, have the court find in my favor, and call me non-exempt, from what I can tell the company would have to pay twice what I’m due in overtime… What are the chances I would still have a job after?
Thanks, and again, you’re not my lawyer, I don’t know you, any advice is worth what I paid, NOTHING… But my mind has been racing doing research and figuring out possibilities, and figured I would ask the Dope to figure out my next step (which might be mute, if my boss convinces his boss to pay me correctly!)
When you say you worked only about a third of the time you normally do in a pay period, do you mean you were in the office doing nothing, or at home waiting for a call? I’m certainly not a lawyer, and I don’t know if it makes any difference, but it seems like it might.
Can’t see that it would make a difference. The company decided not to pay you, that’s all. Seems wrong to me – if they’re slow, it’s not your fault. If I come in to work, and there’s nothing to do (say, if there’s a network malfunction, or a power outage, or something), I still get paid.
Can’t hurt to give the boss a chance to make this right, but if you’re going to pursue this, you’ll need a lawyer. And you’ll have to figure out if the cost of a lawyer and a lawsuit will be more than what you stand to recoup. This seems likely. And I’m wondering if there’s enough money at stake to make it worth a lawyer’s time to work on contingency.
The chances of keeping your job if you get a lawyer and take your employer to court and win are zero. The chances of keeping your job if you get a lawyer and take your employer to court and lose are zero. That sucks, and it’s probably illegal (or at least it should be), but it’s reality.
In my completely worthless opinion, your only hope is that your boss does the right thing. It doesn’t sound like there’s enough money at stake here to make the cost of a lawsuit worth it. I’d start looking for another job.
Sorry to be so pessimistic, but that’s how it looks to me.
As in I was home waiting. I’m a “floater”, so I fill in when other people want off. February has a very low amount of people wanting off (everyone used vacation time during Christmas, school in session, it’s cold, basically no one requests off. Feb is the slowest month as a floater, it is literally the only time that being salary is in MY favor vs. the corporations).
From what I read, as an exempt employee, they can only take weeks off, as long as I did not perform “ANY” work in the the week. I was not scheduled for a shift in an entire week, however, I did go in for a mandatory computer based training. In the 7 day period, I was “working” for about 45 minutes… Though was willing to go in if requested (which I have a history of going in at last moment if / when someone calls out).
Three ways for me to look at this, the money they didn’t pay me is 1/75th of my pay last calendar year, however, if I lose exempt status I’ll be owed 1/4th of my pay last year in back overtime, and I saw a clause when reading the FLSA that says that “the company can lose the exemption on everyone under the manager with the same job classification”, which would cost the company hundreds of millions of dollars, so defiantly something a lawyer would at least look at.
My biggest two things is one, I actually LIKE my job. When it comes down to it, I’ve never had a problem with my own boss, love my co workers, when compared to other companies in my field I think I work for the best (I wouldn’t work for the largest no matter what, It would be like selling my soul to the devil. I’d rather declare bankruptcy!); and two, I’ve put in over 7 years in my job, I’ve made myself a good rep over the past years, I don’t want to start on the bottom in seniority again (In my career, there isn’t THAT much difference in pay between companies, more in seniority and working conditions).
Not wishing to sound cold here but if you are waiting for work, spend time perusing the Department of Labor web site, sending emails and making phone calls about your status.
FWIW, in this economy I would assume any employer will straddle the line (if not deliberately cross it) with their HR activities for the company’s benefit, and not yours. Update your resume and start looking, no matter how much you like your current job. Your current employer is not thinking of your interests at all.
As I said, the month of February is exceptional in my line of work, it is only this past pay period that was an issue, and I don’t expect problems in future pay periods anytime soon. This past pay period (14 days), I worked a total of 3 days, or 32 hours, 45 hours below my base. This is lower then I ever have ever worked since I became an except salaried employee. This next pay period (that we are in now), I’m scheduled to work 75 hours, 2 below my base, and increasing come March when I expect to be above my base once again.
I spent the time today to figure out how my work hours week by week were last calendar year. Slow in early winter, busy in spring, crazy in Summer (Peaked about 80 hours a week in beginning of June). I had two pay periods last calendar year that I was below my base, both times they bumped my pay up to the base as agreed. Total amount they paid me in those two weeks that I didn’t work was less then 10 hours.
I.e. This is the first time it was a financial benefit for them to try and screw me, and was what I was counting as my payback for all non-overtime I didn’t receive. If I was hourly again, I would make more in overtime (which they would pay, since come summer, they NEED me), then I would lose in the weeks I was below my base.
It sounds like the pluses of this job vastly outweigh the negatives. If I was employed at a decent wage and position and the company only took 1/75th of my pay because of a downturn I would suck it up and move on. You need to look at the big picture which can easily include having no job at all unless you’re an invaluable superstar employee.
It sounds to me like, even with this slow down, over the year you average way more than 40 hours a week. Since you’re salary it doesn’t matter if you work 40 or 60, you get paid the same.
Yet the one time it would actually work to your advantage, they want to cut your pay? I’d fight it every step of the way, that’s complete bullcrap.
I’ve worked many “exempt” jobs and what ended up happening was that, while in theory you are supposed to be there based on your skills and knowledge and ability to get a job done no matter how long it takes and whether you get your weekly work done in three 4-hour workdays or have to put in 10 hours Monday to Friday plus 6 on Saturday is irrelevant, just get your work done, the reality was that Accounting treated our salary in a pay period as being divided up into hours based on the standard hours for the week and those hours were billed to the appropriate departments and customers. If you were on a two-week pay period, you had 80 hours to bill and if you didn’t bill those hours to an approved activity such as direct customer work or acceptable overhead activities like filing office paperwork, attending corporate meetings, or cleaning the bathroom, managers started tearing their hair out and screaming about where the money was going to come from to pay you. No department would hire you to do whatever work is necessary, however much that might be. You were hired with the expectation that you would bill 80 hours a week to the department every two-week pay period and if you didn’t, you were expected to find some other department to bill the rest of your salary to or else take leave time.
I am trying my best to think of a job that would appropriately be classified as exempt and simultaneously require someone to fill in when other people take time off. The only ones that come close are nurses and teachers- but in my understanding, the substitutes or floaters in those professions are paid by the shift/day worked, not a set salary no matter how much or how little they work. Most truly exempt jobs don’t lend themselves to someone coming in as a floater when another employee takes a day or a week off.
Really? I’m classified as exempt. My customers are internal, meaning my customers are our sales staff. My desk has to be staffed 5 days a week. If I’m out, someone else is covering for me, and I return the favor.
Don’t know what your job is- but I didn’t mean that a coworker wouldn’t cover to some extent. To give an example, my husband is in outside sales. When he’s out, other salesmen may see a few of his customers, and the inside sales staff will take phone orders from his customers, but it wouldn’t really make sense for his company to have a extra salesman (who only works when someone else is off) visit his customers when he’s off for a day or a week. My fellow managers will cover for me in time-sensitive situations , but the majority of my work is not-time sensitive and can’t be effectively handled by someone who steps in for a day or a week (program evaluation, personnel issues,recommending changes in policies and procedures etc). When a lawyer in my agency is out for a day or a week, another lawyer will answer questions and deal with emergencies on the absent lawyer’s cases, but it wouldn’t make sense to bring in some other lawyer to work on his or her cases for a week.
Well, the OP says he “was” hourly, so I wonder if this was a case of a sort of position that normally is paid hourly, but someone figured out that this one guy was used so much, and so often paid overtime, that it made sense to go ahead and put him on salary, even given the occasional slow week. Then, when the slow week hit, some other guy was like “Why are we paying him to do nothing?”
Hirka, I’m familiar with your job schedule as I worked in the same industry for probably the same company you work for now (or a very similar one). Your work availability as a floater is severely impacted by your district and regional managers, and the market for your position has toughened. If I were you, I’d just let it roll and not be that guy who doesn’t get called up for any scheduling opportunities in the future until you can be managed out of a job.
That may be, but if the position is normally paid on an hourly basis, there’s a pretty good chance that it is not properly classified as exempt from overtime.
No, the position he’s talking about is not available in a manner that would pay overtime. There are salaried positions usually with a base of 88 hours and any hours worked over that is available at the same normal rate, but I’m very familiar with his job and the way they’re structured. He would have to be a staff employee at one location to have what would amount to a salaried position, but it really isn’t like a salary position in any sense of the term. Meaning, you don’t get to just work a day and call that good. It’s a very specific shift, so it just means you have a set schedule at a set location and will be expected to put in X number of hours at Y rate each week consistently.
Yes, for two reasons: First, the 2004 FLSA regulations contained a safe harbor provision to basically let employers weasel out of pay docking by a rogue manager. If you work for a large employer, chances are they are all set up to invoke this provision.
Second, any judge will be loath to sock your employer with a big surprise liability just because of an isolated incident such as this one.
Here’s a snippet from the DOL web site:
What I would do is check your employee handbook. It may very well explain exactly what to do and who to complaint to if you are docked as an exempt employee.
I highly doubt that you will win . . . most likely you will get a check reimbursing you for the docked pay and that will be it. Of course, even if you lose, the company isn’t supposed to retaliate against you. Whether they do or not depends on the personalities involved so it’s difficult to predict.
I’m “like a nurse”. as in I’m paid for what I work, straight pay, no overtime. If I work 95 hours in a pay period I’m paid that, if I work my base 77 hours, I’m paid that… If I work less, then since I’m “Guaranteed” a particular amount of hours, I’m suppose to be paid for those hours I’m “guaranteed”. Previous lawsuits have set president that there is no loss of exemption if we are paid extra for working extra, as long as there is no negative for working less.
Yes, exactly… This is what happened. Most people in my position is hourly and non-exempt. I was at first when I was hired, and I racked up a decent amount of time and a half overtime.. I ended up covering a normal schedule for an exempt employee while she was on maternity leave so they made me exempt. After she came back they decided to leave me as exempt (i.e. guaranteed hours)
ladyfoxfyre, you’re one of the ones on the Dope who are in my profession, so you know EXACTLY what I’m talking about. I’m employed by the third largest chain company in our profession, so I’m sure you know who I’m talking about… And it is the Regional manager who decreed what was done.
Exactly, There is my job. I’m “guaranteed” 77 hours. I normally work WAY more then that. I do not get time and a half, but I do get paid for what I work. If I work shifts equal to 95 hours in 2 weeks, I get paid for the 95 hours in 2 weeks.
I noticed this when I started researching the law. That is why I’m going through all the steps right now. I sent a request to my immediate boss, from the “company complaint policy” I need to contact my district HR administrator if no response in 10 days, then the head of HR if no response in 15 days, then after 20 day, his decision is final. As of right now, I’m following the policy, My boss has acknowledged receiving a request, waiting till I hear something back. Tomorrow I’m going to follow up.
I know I will be paid… Eventually… The law is quite clear… If they try fighting me, then I’m not exempt… Then they owe me $14,000 in OT straight up, penalty is double, so close to $30,000… If they still fight it, everyone with my “job classification” could lose exempt status… If it is just the people below the manager who made the decision, that is about $2 million… If they go for the whole company, that is hundreds of millions (just going off the “standard” schedule)..
I like my job, I just want to get paid what I’m due, and not have to burn bridges… Damn companies making that hard…
Is it possible that you could make a complaint with the department of labor, rather than suing them directly for it? You already know you’ll be retaliated against and fired at the next opportunity.
It may all work out fine for you, but big picture you’re making a lot of money with a fairly lucrative setup. So far you’ve been dinged a tiny amount. It they were raping you it would be a different issue, but making an HR fuss about it at this stage might not be the best long term move strategically.
That is a possibility, I’m waiting for a response from my immediate boss “my PDM”. If I don’t get my pay on my next check, them I’ll look to advance this. I have an old friend who is a lawyer, hoping she knows someone who is an employment lawyer in my state.
Yes, and this is what kept me from a lawyer when I was first shorted. So far, I’ve been happy with the employment arrangement. I never complained… It was only when I was shorted on a paycheck I expected to be bumped to my “guaranteed” hours, this first time being salary benefited me vs. the company… That I’m looking into alternatives… So far, I don’t know what I’m going to do. I’m following the policies and procedures as set forth in my the company policies. I’m giving them the first level free and clear… If I’m satisfied in the next few days, then I’ll have to see a lawyer and advance to the next level…
AND They do have an “anti retaliation policy”… I’ve never had a complaint in the last 7 years working for the company, or the last year and a half in my position. If they try fireing me out of the blue, figure that is illegal, and if anything, suing them might actually make me MORE protected then before.