I finally decided to sally forth from MPSIMS into the harsh world of General Questions, please be gentle with me.
My dilemma is this; I work for a small engineering firm primarily as a drafter. I currently am a Non-Exempt employee and am paid 1.5 for OT. None of the other drafters are!! Several days ago, our VP announced that we were going to begin mandatory overtime due to our large work volume. I was fine with this because I expected to get paid for it. But then they dropped the bombshell by calling me in for a meeting and saying that they were going to make me a salaried employee retroactive to the beginning of the year.
And my actual question is, does a drafter meet any of the requirements under the FLSA (Fair Labor Standards Act) for exempt classification?
I work on a computer, but I am not a “Highly-Skilled Computer Related” employee. No degree or special training is required to do my job, therefore I am not a “Professional Employee”. I am certainly not Administrative!
Someone with more knowledge of this area of law come advise me. I know that there are several lawsuits currently underway by groups of employees who were mis-classified by their organizations to retrieve up to 3 years of back overtime. In my next meeting with them to discuss details, I would love to be able to support a claim that, not only am I not exempt, but NONE of the drafters should be, and they could truly hold you liable for penalties in addition to the back overtime for having us mis-classified.
One of the marketing VP’s was shocked and dismayed when he learned that the rest of the drafters were exempt, and suggested I research wheter or not that was correct before I rolled over an accepted a voluntary pay cut.
Please let me know where I can find the answeres I seek to retain my OT pay.
the understanding i have is: those who work “on the boards” and do not have professional standing, ie reg. archs, prof. engs, manager, etc are hourly employees and get paid time and a half for hours over 40 per week.
be sure to check how they have you listed, what job title you have. if you are in an ae firm and are listed as a “designer” in eng or arch, you are an hourly emp. and should get the overtime pay.
I’m actually an attorney who does a lot of wage and hour work. However – standard disclaimer about legal advice, I’m not your lawyer, blah blah blah.
The first question I have for you is this: If you (or one of your co-workers) were to work 38 hours in a week, would you be paid less than your normal weekly pay?
If this is the employer’s practice (known as “partial day docking”), a good argument can be made that you are entitled to overtime regardless of your job duties. Because a salaried employee must be paid on a salary basis.
If such a change would result in a retroactive reduction of your pay, I am skeptical that it would fly, legally speaking. (Of course the answer would depend on the laws of your jurisdiction, blah blah blah)
I’ll assume that you are not subject to the executive exemption.
However, I wonder if you are a “professional” or not. As I recall, the training requirement for the professional exemption can be met by on the job training. It may be a close question. Could somebody off the street do your job from day one? What sort of decisions do you make in the course of doing your job?
A word to the wise – if you feel you must accuse your employer of breaking the law, do so with a tablespoon of sugar.
If you are in New York, I can put you in touch with a buddy who does class action overtime work who would be happy to talk to you. Sorry I can’t give you a definite answer.
I’ve got a question about this. My employer classifies me as an exempt employee. If I work fewer hours than the standard work-week I am treated exactly the same as the non-exempt employees. In both cases, partial day docking would occur if I didn’t have leave time to make up for the missing hours. Would the policy alone be enough to require overtime, or would someone actually have to be docked pay?
What you describe sounds like what’s known as a “leave bank.” As I recall, the caselaw is not entirely clear on how leave banks are to be treated. However, if you are confident that the company partial-day docks when the leave bank is exhausted (either because the manual says so or because it happens on a regular basis), then I think you’d have a decent argument that you are not exempt.
Ideally, you need to look at the cases in your jurisdiction. As I said the the OP, if you work in New York, I know a guy who would love to talk to you.
Do a little googling on FLSA, overtime and Department of Labor. The current administration through the DOL is actually providing advice to employers on how to avoid paying overtime and how to classify employees as “exempt.”
The reality is that unless you have a union or are willing to file charges against your employer (Which most are reluctantly to do) you are going to be stuck with the decision of your employer.
The proposed new standard tests are, as expected, more broadly written and will likely result in large numbers of non-exempt workers in the middle re-classified as “exempt”. Yesterday’s Wash. Post has a good article on this expansion.
Were drafters in your company’s history treated as non-exempt?
But since we only know very brief details about your actual job description/duties, my suggestion would be to follow the above link to the DOL site and see if/how you could argue that you would not fall under the listed exemptions.
And the bit about making such a change retroactive would probably not be a good idea.
The exempt vs. non-exempt issue is the biggest bunch of crap in labor law. I’m a degreed engineer, so I’m exempt as far as the job requirements go. I’ve never been paid time and a half and in fact am often asked to work overtime, and especially travel, for free. Fine. But I’ve always been required to work 40 hours a week, even if things are slow, and even if I can do as much as the next guy in only 30 hours. I’ve worked for some very large, well-known corporations with HR departments that are clearly well-versed in the law, yet I have had to punch a time clock and account for 40 chargeable hours every week down to the tenth of a hour. How is this legal?
I worked this morning. (Mandatory OT, see why I want to remain non-exempt) and mentioned some of the things you brought up, and thing I had found by googling based on your suggestions, in a strictly conversational talk with my VP. First, let me say that the people who run my company, this VP included, are engineers, not business people. So I had a feeling that this had just never been looked into. We discussed bonus likelihood, and a possible upcoming merger, and he admitted that, while the intent was to compensate exempt employees via bonuses, the outlook was not positive for the immediate future. He also agreed that, due to the amount of OT that I work, it would be a tremendous pay cut for me to be exempt. Most importantly, he agreed that my position did not really fit the exempt categories laid down by the FLSA. To make a long story short, thanks in no small part to all of you, my position is now Salaried, non-exempt. Which is the best of both worlds.
Thank you so much for your help. I now release you to do whatever it is you were doing before I interrupted.
IANAL, so I have no idea if it is legal, but . . .
I believe that one way to successfully argue that an exempt employee is actually non-exempt is by requiring the employee to adhere to an inflexible schedule. Things such as having to punch in and out every day, arrive at a set time with no flexibility, having to itemize in detailed ways your daily schedule and submit for review, etc.
In one former company, a new policy had been enacted requiring anyone arriving past 9:15am to sign in at the front security desk. All employees would therefore have to have a start time for their workday by 9:00 am. Those who arrived late repeatedly were to be disciplined. As HR, I argued that by simply allowing this inflexibility in the start times of exempt employees, it could be used as evidence to favor an exempt employee claiming non-exemption and demanding back pay for overtime work. The policy was dropped after one week and I discarded the sign-up sheets that had accumulated.
Again, I am not a lawyer and my suggestion above was done as HR for that company. As to the likelyhood of a lawsuit being succesfull, I wouldn’t know.
Interesting thread. I’ve gone from non-exempt to exempt in two different companies, and both times it came with a big fat raise. Most of the hourly emplolyees were salivating for the chance to be “bumped up” to exempt. It meant more money (overall), more perks, less handholding, better bonuses, more vacation, etc.
I’ll admit the job titles and descriptions changed, but only slightly.
It never ocurred to me that a company could use exempt status merely for the purpose of bilking employees out of overtime pay.
Heh. At another company, also in the post-dot.com Sillicon Valley, all salaried, exempt employees had to take a pay cut as a percentage of their salary (those at $65,000/yr had a 6.5% paycut, $82,500/yr had an 8.25% paycut, etc., and those above 100k also had an additional 10% cut on top!).
Non-exempt employees were spared any pay cuts. Though I assume there wasn’t much overtime for them.