Labor/overtime question re: salaried employees

My wife works at a winery (in Oregon). They ramped up to a much larger production over the last year, and now they’re facing a crunch to get everything bottled in time.

Her bosses have floated the idea of possibly having all of the staff work 6 days a week for the next month or so to eliminate the bottling bottleneck. Since my wife is salaried, she would theoretically get no extra pay.

Now, for those not familiar with the wine industry, it’s customary for employees to completely put their lives on hold during harvest each year. For a 2-month+ period, you generally work 12-14 hours a day. Last year, my wife and her co-workers only got one day off every two weeks. Hourly employees get paid overtime. Salaried employees get no overtime. However, the period from the end of harvest into the new year is usually pretty dead, so the salaried employees are usually allowed to take large amounts of comp. time.

This new development, however, seems like a different story. I mean, we had always wondered on some level how legal the lack of overtime pay was during harvest, but let it pass since EVERYONE in the industry here operates that way. The schedule is a given, just like folks who work on movies know that they’re going to be working 16-hour days for two or three months during a shoot.

So … what’s the scoop? Is it legal for an employer to require its salaried employees to work a 6-day/48-hour week and pay them the same as they would for a 5-day/40-hour week? Granted, this being the modern world it is, my wife has no union and no contract to protect her. But I thought that state labor depts. often had their own rules that forbade such practices.

(For instance, when she worked in NY State, her employer had never paid its employees time-and-a-half for the hours worked in excess of 40 hours during the weeks of harvest—ostensibly because it considered all of its employees to be “farm workers,” who are exempt from such hourly restrictions. However, a state auditor thought differently, and told them that people working inside the winery facility were NOT farm workers—only the vineyard staff were—and the winery had to give everyone a couple of years’ worth of back pay.)

Absent a labor contract, salaried employees are not entitled to overtime. Many workers normally work a six day week. In fact at my job the managers job descriptions say "You’re salary is _______, this is based on a 50 hour work week.

They then fill in the salary. So of course it’s a bit of a lie as salary is normally based on 40 hours a week.

That said an employer can’t simply declare a position “salary” in order to avoid overtime pay. You have to check with state laws. For instance in my state, the court ruled a secretary was not an “exempt employee” (meaning no overtime) but the bosses “executive secretary” was an exempt employee. Often times the legal distinction is based on things like, overseeing other employees, the independence of the position, and finally it’s status.

You really need to check your state law or your labor department in your state, they will be easily able to tell you whether or not the position is “exempt.”

Short answer: Yes.

In the technical fields, it is pretty much Usual & Customary to be required to work more than 40 hours a week for your salary. Nowadays they’re getting a little smarter about it, as per iturntoyou’s response and they tend to throw out numbers like 45 or 50 hours per week. Won’t stop them from demanding 70 any time they feel like it, either.

Just to add another voice in the “yes” column. Her best angle is to investigate whether her position truly is exempt (what is often called salaried). The more clearcut her professional and managerial duties are, the more likely she is truly exempt. In fact, with the provision of comp time to exempt employees, the employer is going beyond what is required by law.

It’s, er, complicated. First, there is a difference between salaried and exempt for Fair Labor Standards Act purposes: http://www.dol.gov/esa/regs/fedreg/proposed/2003033101.htm

Exempt employees don’t get overtime; non-exempt employees who are paid a salary do.

An additional complication in the case of wineries is that there are additional exemptions for agricultural workers and employers.

http://www.dol.gov/esa/regs/compliance/whd/whdfs12.pdf

State laws add another layer of complexity here: BOLI : Support for Oregon Employers : For Employers : State of Oregon

Specifically regarding mandatory overtime, Oregon state law says:

BOLI : Support for Oregon Employers : For Employers : State of Oregon

I recommend contacting these guys if you have further questions: http://www.oregon.gov/BOLI/index.shtml

Interesting. She, and a few of her co-workers, would appear to not be exempt–no real management duties, and much of the work is probably too physical to qualify under “professional.”

Except that none of these folks work in the vineyards, so they likely don’t qualify as farm workers. (That was NY State’s conclusion.) Much as you wouldn’t expect someone at a Kellogg’s cereal plant to qualify as a farm worker, despite the fact that they handle agricultural products.

Good to know re: mandatory overtime, though. Thanks for all the resources.

Yep. That’s a key distinction, at least for some purposes. I’d call the wage and hour folks and have a chat, just to be sure. Some agricultural employers are exempt, and it all gets pretty complicated.

Companies have been known to get into trouble for considering someone ‘exempt’ and maintaining them as a salaried associate when they have no specific accountabilities that would make them exempt.

It might be her best shot. Ironically, if she does have advancement potential, she might do more harm to her career than good.