I’m in IT and, other than the few times I’ve done consulting, I’ve always been salaried rather than hourly.
What am I missing here? The Department of Labor already includes this text and has done so since at least 2008. See the following link and note the last revision time. http://www.dol.gov/whd/regs/compliance/fairpay/fs17e_computer.htm
For what its worth, I am a programmer and have been forced to work mandatory overtime for years, each day. I punch a clock and am timed to the minute on my attendance. There is no overtime pay nor has there ever been.
As far as I can tell, the only actual change is the addition of subsection C:
If they are truly forcing you to work overtime then you have a hell of a back wages class action suit when you decide to leave. They have fucked themselves by keeping track of your time.
How so? If I’m an exempt employee, they can do whatever they want; my only option is to quit and find something else. ‘Overtime’ doesn’t really exist with a salaried employee does it? Basically a few years back they changed our required hours from 40/week to be 45/week. And based on what the statute already says they can do this without consequence.
If you’re a salaried exempt employee then your employer doesn’t have to pay you overtime, but the way you talk about them having you clock in makes it sound like they aren’t properly treating you as an exempt employee.
From the FLSA:
If you’re true salary that means if you are supposed to work say, 8-5 (with an hour lunch), and you come in 2 hours late it’s alright for your employer to have a plan in place where they can require you to charge those 2 hours against personal or vacation leave. It isn’t permissible for them to reduce your pay for that period based on a partial day absence.
Just because they track your hours doesn’t mean they are violating the law, you can track exempt employees and in fact many companies do primarily because the employee might be exempt but internal accounting might want their hours worked so they can “charge” them against certain internal accounts, and for project management purposes analysts like some time tracking so they can calculate productivity measures and things of that nature.
A “good” employer to work for if you’re exempt typically lets you “more or less” set your own schedule, they don’t bust your balls if you need to leave early on a Friday or something like that. Mainly because it is understood exempt employees do often end up working more than 40 hours/week, a good employer of exempt employees will give a lot of flexibility.
But they aren’t required to, they can be real hardasses and expect you to follow a set schedule and expect you to take partial day absences out of sick/vacation/personal leave. However, what they can’t do is reduce your pay for a partial day absence, they can dock you whole days of pay for disciplinary reasons (but it must be part of an established disciplinary plan), and of course they can also as part of the disciplinary process fire you for too many partial day absences, but if they’re tracking your hours because they pay you less if you don’t work a certain amount, that’s illegal.
When I was an exempt State employee that was exactly how it worked by the way…we were monitored in quarter hour increments. If we were more than 7 minutes late or took 7 minutes over our allotted lunch time we were required to go and sit in a non-work area for 15 minutes and then deduct .25 hours from vacation/personal leave. We weren’t allowed to deduct it from sick leave. If we ran out of leave however they wouldn’t reduce our pay, but you could end up fired for it at that point.
That was the policy anyway, in practice everything was up to supervisor’s approval and most didn’t want to monitor people to that degree (and we weren’t required to clock in, so there was no monitoring system.)
Note that exempt =/= salaried. If you don’t get paid for days when you’re out and you don’t use sick time or PTO, you’re not salaried.
If you’re exempt they have to pay you on a salary basis, so in fact exempt does = salaried by FLSA definition. The only exceptions would be persons operating on pure commission, things of that nature. The exempt employees that aren’t on a salary basis aren’t employees where you monitor their time in any case, so the whole matter is irrelevant to that special class of exempt employees (sales staff and such.)
If you have someone as an exempt employee, meaning you are not paying them overtime in accordance with FLSA then unless they are a certain category of professional or sales staff then they are paid on a salary basis or it is not lawful. For FLSA purposes if you pay someone on a salary basis you do not have the option to decline to pay them, even for “lesser quantities of work”, their salaried amount.
The only exceptions to that as per FLSA are:
-For partial day absences you can force an employee to use vacation or other types of leave
-For full day absences you can dock someone’s pay for the full day, as long as it is in adherence to an established disciplinary plan.