Anyone know anything about Employment Law??

FutureMrsN3312 · July 2014

I don't know anything about employment laws and I'm sure they vary from state to state.

But H just text me about some stuff going on at work. His department (IT) is still awaiting their annual reviews and salary increases. H's boss (the COO) said it's not looking good for salary increases especially for those that made over 10% of their salary in commissions. Fine no big deal. I know that companies can't just hand out raises blah blah blah.

This is where my question comes in...H's boss went on to say that everyone in the IT dept will be moved from salary to hourly paid employees. (This happened to H last year and there were still a few people left on salary...again no big deal) The problem is that they will no longer be paying out OT even though they are required to work over 40 hour a week. They are claiming that they don't to pay OT hours even though the employee worked it.

Can they do that? H is required to work 7:30-5pm M-F with a 30 min lunch. There are times when clients need his help after hours or he needs to run updates that can't be done during business hours because it will impact a company's network. His hours won't be changing but they're only going to pay him for 8 hours a day.

Pretty sure he looks like this sitting at his desk...

thetimewillcome · July 2014

I'm sorry your husband is being jerked around

This is not my area of expertise, but what I do know about this particular point employment law is this: under the Federal Wages and Fair Labor Standards Act (FLSA), a person gets paid time and a half for overtime, which is considered anything over a 40 hour workweek. The workweek can be defined a little goofy, like Monday to Monday, but the definition is a fixed and regularly recurring period of 168 hours.

However, the exception to this rule is if the employee is considered exempt from this rule. My recollection of exempt employees is if they are considered professionals. There is a definition of professionals in the Act. ETA: There are other exemptions besides professionals, but in my head I immediately thought that is probably the exemption that MAY apply.

It has been a couple years since I looked this up because I was in a situation very similar to what you mention so my recollection may be a little fuzzy. I recommend looking up the FLSA and seeing what you can find. You can find it on the Department of Labor website.

Also, the FLSA is federal which means it's the bare minimum that the state has to do, so the state may have different requirements that are "better". For example, the FLSA says the minimum wage is $7.25 which means all businesses (that fall under the rules for having to pay minimum wage) have to pay $7.25, but some states require a higher minimum wage so businesses in those states have to pay the state minimum wage.

FutureMrsN3312 · July 2014

Thanks @thetimewillcome! I'm going to look into it.

It just seems shady. They took him off of salary last year right after a major job that he completed after hours on a holiday weekend. (Which would have cost them big bucks if he was hourly)

They have a similar project coming up in August. H will be required to work his normal hours on Friday till Friday night (till 1 or 2 in the morning) all day Saturday and all day Sunday.

JCbride2015 · July 2014

I can't give you legal advice.

This is also not an area I really know much about anyway. But from a practical standpoint, you're saying they are only going to pay him for a set 8 hours a day but require him to work more? So they're basically giving him a pay cut, right? I think the obvious thing for him to say to his boss is that if they are paying him for 8 hours, he expects to work for 8 hours. Lots of shitty things in employment are legal. So regardless of the legality here, they are treating him pretty shittily.

NYCMercedes · July 2014

Disclaimer: this is all eyewash as I'm not a professional in this field.

Check the website of either your state dept of labor or the federal dept of labor first. The state can order higher benefits than the Feds, but not lower. I would start under the "wage and hour" division. Your H needs to check with the HR professional in his office to make sure he truly understands the compensation change. It's not against the law to require nine hour days as long as he gets a break. I would not spend any money on a lawyer right away.

It is my understanding that his pay cannot net to lower than the higher hourly minimum wage of your state. That's a very low floor. Also, there is a determination of how much discretion and managerial duties he has, to determine whether he's exempt from being paid OT. Bosses are exempt.

Additionally, it sounds like you have commissions to consider. A company that lowers one's pay may entitle the employee to unemployment compensation, but his commissions and salary level affect application of the laws.

You may find that the government enforcers of these laws personally are not very sympathetic to a high paid executive complaining that his pay was cut or his hours were increased. They're low paid.

Good luck. In my career, sometimes I was just glad to have a job still at a sinking company. It was time to look for another job when I still had one.

FutureMrsN3312 · July 2014

JCbride2015 said:

I can't give you legal advice. This is also not an area I really know much about anyway. But from a practical standpoint, you're saying they are only going to pay him for a set 8 hours a day but require him to work more? So they're basically giving him a pay cut, right? I think the obvious thing for him to say to his boss is that if they are paying him for 8 hours, he expects to work for 8 hours. Lots of shitty things in employment are legal. So regardless of the legality here, they are treating him pretty shittily.

Thanks JC. I agree. He's been there 9.5 years. Hasn't seen a raise in 4 maybe more years. I know raises aren't required but neither is slave labor. Especially when the company pays nearly 30k below the going rate for System Engineers.

I told him to bite your tongue for the time being. If they're paying you for 8 hours only work 8 hours. And make sure your resume is up to date and start sending it out.

loveislouder · July 2014

Where I'm from, employees can bank their overtime hours and take time off in lieu of pay. If the company hasn't given them the time off by the end of the fiscal year, the employees must be paid out the overtime. Maybe that has something to do with it?

JCbride2015 · July 2014

loveislouder said:

Where I'm from, employees can bank their overtime hours and take time off in lieu of pay. If the company hasn't given them the time off by the end of the fiscal year, the employees must be paid out the overtime. Maybe that has something to do with it?

Strategically, this might be a good bargaining chip. MrN could ask his boss if they can extend him some extra paid time off to help make up for the salary cut. Fi did that once when his job was unable to give him a raise that year; he asked for (and got) an extra week of vacation instead.

FutureMrsN3312 · July 2014

NYCMercedes said:

Disclaimer: this is all eyewash as I'm not a professional in this field.

Check the website of either your state dept of labor or the federal dept of labor first. The state can order higher benefits than the Feds, but not lower. I would start under the "wage and hour" division. Your H needs to check with the HR professional in his office to make sure he truly understands the compensation change. It's not against the law to require nine hour days as long as he gets a break. I would not spend any money on a lawyer right away.

It is my understanding that his pay cannot net to lower than the higher hourly minimum wage of your state. That's a very low floor. Also, there is a determination of how much discretion and managerial duties he has, to determine whether he's exempt from being paid OT. Bosses are exempt.

Additionally, it sounds like you have commissions to consider. A company that lowers one's pay may entitle the employee to unemployment compensation, but his commissions and salary level affect application of the laws.

You may find that the government enforcers of these laws personally are not very sympathetic to a high paid executive complaining that his pay was cut or his hours were increased. They're low paid.

Good luck. In my career, sometimes I was just glad to have a job still at a sinking company. It was time to look for another job when I still had one.

We aren't looking into getting a lawyer I'm just curious. I used to work for the same company so I know how they try to get over on people. Part of the problem is the new CFO they hired almost 2 years ago. He's doing great things to save the company money but he's fucking the employees over at the same time and making people not want to work there. ie: health benefits used to be split 80% company paid 20% employee paid. Now its the reverse (people with families pay almost 3k a month for basic health insurance) I realize things like health benefits go up but every good thing about working for the company he took away.

H isn't a boss, manager, or over paid executive. That would make sense to make him exempt. Most days he's thankful for the job. Unfortunately today isn't one of them.

FutureMrsN3312 · July 2014

loveislouder said:

Where I'm from, employees can bank their overtime hours and take time off in lieu of pay. If the company hasn't given them the time off by the end of the fiscal year, the employees must be paid out the overtime. Maybe that has something to do with it?

We used to be able to save up PTO days and cash them out at the end of the year. The CFO took that away too. It was like a holiday bonus. We would get our checks the beginning of December. It was great.

southernbelle0915 · July 2014

This isn't legal where I'm from. Hourly employees get paid overtime (time and a half) for time worked over 40 hours/week.

I would talk to an attorney who is familiar with your state and specializes in employment law.

Strategically, if I were him, I'd be saving emails and documenting verbal communications where they outline these changes, his new schedule, his lunch break, salary changes... everything. Document, document, document. Show the attorney everything.

My old company was like this. HR skirted around the law all the time because most employees didn't understand it and didn't take any action even if they did for fear of losing their job. I left for that reason...

KatieinBkln · July 2014

Yikes. I can't help you with the legality, but what I DO know is that it's definitely time for your FI to find a new job. Good luck!

vk2204 · July 2014

How does he log his hours? If he is hourly he should be punching a clock. I am considered Salary Overtime Eligible - I don't punch a clock, I enter working hours into a system, and get paid OT for anything over 40 working hours. I don't think they can call him hourly if he does not get paid for all of his working hours.

Jells2dot0 · July 2014

I'm no expert, but it does vary by state. All I know is that I fall into the exempt category and have worked 50+ hour weeks and have gotten nothing for it. No OT, no comp time, nothing.

FutureMrsN3312 · July 2014

southernbelle0915 said:

This isn't legal where I'm from. Hourly employees get paid overtime (time and a half) for time worked over 40 hours/week.

I would talk to an attorney who is familiar with your state and specializes in employment law.

Strategically, if I were him, I'd be saving emails and documenting verbal communications where they outline these changes, his new schedule, his lunch break, salary changes... everything. Document, document, document. Show the attorney everything.

My old company was like this. HR skirted around the law all the time because most employees didn't understand it and didn't take any action even if they did for fear of losing their job. I left for that reason...

Yea he's saving all that stuff. He's good like that and I constantly remind him about that kind of stuff.

The "HR Director" with little background in HR is a joke. This is the kind of stuff that made me leave the company. I was hired as a receptionist. I advanced my way up to learning how to do the work of 3 different people while still making $15 bucks an hour. Meanwhile those salaries combined are over $100k.

FutureMrsN3312 · July 2014

vk2204 said:

How does he log his hours? If he is hourly he should be punching a clock. I am considered Salary Overtime Eligible - I don't punch a clock, I enter working hours into a system, and get paid OT for anything over 40 working hours. I don't think they can call him hourly if he does not get paid for all of his working hours.

He has to hand punch in and out every day. They also use some type of software that tracks all of their time. I forget what it's called.

lyndausvi · July 2014

Jells2dot0 said:

I'm no expert, but it does vary by state. All I know is that I fall into the exempt category and have worked 50+ hour weeks and have gotten nothing for it. No OT, no comp time, nothing.

But do you punch a clock?

DH is salary exempt. He works 80+ hours per week these days with no OT. He sort-of gets comp time. It's not 1 for 1 or even tracked. It's more like an unwritten benefit.

For example, when we go to the OOT wedding in Sept we will be gone 5 days (3 works days). He will not have to take any PTO. Most people get your standard 2 days off, he was there every day in June and only missed one day in July. I mean every single day. The company appreciates his efforts and commitment so they are not going to request him using PTO a few days off for a wedding.

Now if he wanted to take 3 weeks off in comp time I doubt they would approve that.

I've also heard of salary non-exempt employees. Meaning they get a salary but they eligible for OT and/or comp time.

I've never heard of an exempt hourly employee. Not saying it doesn't exist. Just not something I've heard of. Kind-of defeats the purpose of being hourly no?

Jells2dot0 · July 2014

I do not punch a clock, but I do record my time to the half hour. I'm not hourly, either. I am salaried. We get vacation time (PTO) but we cannot get comp time because the company considers comp time as a form of OT. So, if you aren't approved for OT, you don't get anything. If you are one of the lucky few that does get approved, you don't get paid for the first five hours regardless. The company considers that to be "casual time."

southernbelle0915 · July 2014

Jells2dot0 said:

I do not punch a clock, but I do record my time to the half hour. I'm not hourly, either. I am salaried. We get vacation time (PTO) but we cannot get comp time because the company considers comp time as a form of OT. So, if you aren't approved for OT, you don't get anything. If you are one of the lucky few that does get approved, you don't get paid for the first five hours regardless. The company considers that to be "casual time."

This is how my job is, too. \

I easily work 50+ hours/wk and I'm salaried. We don't get OT, comp time or any unwritten benefit where a boss will say "you worked a lot last week, take a day off". I'd love that!

vk2204 · July 2014

FutureMrsN3312 said:

vk2204 said:

How does he log his hours? If he is hourly he should be punching a clock. I am considered Salary Overtime Eligible - I don't punch a clock, I enter working hours into a system, and get paid OT for anything over 40 working hours. I don't think they can call him hourly if he does not get paid for all of his working hours.
He has to hand punch in and out every day. They also use some type of software that tracks all of their time. I forget what it's called.

So if he punches in at 8am and punches out at 8pm they just don't count those 4 hours of OT?

FutureMrsN3312 · July 2014

vk2204 said:

FutureMrsN3312 said:

vk2204 said:

How does he log his hours? If he is hourly he should be punching a clock. I am considered Salary Overtime Eligible - I don't punch a clock, I enter working hours into a system, and get paid OT for anything over 40 working hours. I don't think they can call him hourly if he does not get paid for all of his working hours.
He has to hand punch in and out every day. They also use some type of software that tracks all of their time. I forget what it's called.

So if he punches in at 8am and punches out at 8pm they just don't count those 4 hours of OT?

Correct...

vk2204 · July 2014

FutureMrsN3312 said:

vk2204 said:

FutureMrsN3312 said:

vk2204 said:

How does he log his hours? If he is hourly he should be punching a clock. I am considered Salary Overtime Eligible - I don't punch a clock, I enter working hours into a system, and get paid OT for anything over 40 working hours. I don't think they can call him hourly if he does not get paid for all of his working hours.
He has to hand punch in and out every day. They also use some type of software that tracks all of their time. I forget what it's called.

So if he punches in at 8am and punches out at 8pm they just don't count those 4 hours of OT?
Correct...

I don't understand how that is possible. Where I work, the time clock is punched and it feeds into our payroll system and based off of those hours is what appears on the paycheck. Is someone going in and taking those hours away? Are you sure they don't get counted as comp time, or time banked? Our payroll Admins cannot alter a person's timecard without something being signed off by the employee every time they make a change.

OliveOilsMom · July 2014

If there has been no written correspondence of H's new schedule. Can he write an email to HR to confirm or ask for clarification on what his new work schedule and pay is? That way he can get some sort of written confirmation of what is happening. It all depends on the exemption that could be applied to H's job, whether he is entitled to OT. I'm salaried and work 35 hours a week. But once I work over 40 hours, I get half time. But being salaried, my job doesn't have to pay me anything over my normal hours anyway. I have a friend who is salaried and works crazy 50 hour weeks, but she get very limited vacation and no OT. I find it odd that your H's job is switching from salaried to hourly, since as a salaried employee they don't have to pay out OT anyway. And sorry, but I think TK ate my paragraphs.

manateehugger · July 2014

Spent a few years as a compensation analyst. FLSA Audits weren't my thing, but I can give you the basics.

So forget about hourly and salaried for now, because those aren't as important at the moment (and as a lot of you have pointed out, with exempt status, they can still basically treat you as hourly). Right now, I'd have him contact HR to see if his FLSA status has changed. He needs to know if he his FLSA Exempt or Non-Exempt.

If he is Non-Exempt, he should be entitled to OT. If he is still Exempt but paid on an hourly basis, he may not be entitled to OT (which yes, is often used as a way to virtually give people a pay cut without actually docking their salary).

He can also contact a local US DOL Wage and Hour Division Office to chat with them about the change. They (ideally) trained very well on FLSA and should be able to answer questions. Link to contact information for regional offices -> http://www.dol.gov/whd/america2.htm

Finally, I can't specifically give advice unless I was looking at your H's job description and job function, but IT is one of the FLSA categories that gets a bit odd. Here's general guidelines though.

To qualify for the computer employee exemption, the following tests must be met:

• The employee must be compensated either on a salary or fee basis at a rate not less than $455 per week

or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;

• The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;

• The employee’s primary duty must consist of:

1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;

2) The design, development, documentation, analysis, creation, testing or modification of computer

systems or programs, including prototypes, based on and related to user or system design specifications;

3) The design, documentation, testing, creation or modification of computer programs related to

machine operating systems; or

4) A combination of the aforementioned duties, the performance of which requires the same level of

skills.

Link to more detailed info ->http://www.dol.gov/whd/overtime/fs17e_computer.pdf

mysticl · July 2014

loveislouder said:

Where I'm from, employees can bank their overtime hours and take time off in lieu of pay. If the company hasn't given them the time off by the end of the fiscal year, the employees must be paid out the overtime. Maybe that has something to do with it?

Some places require that any comp time be taken within the week it was earned. Otherwise they have to pay overtime that week. I had a friend who worked for a company that did not like to pay OT so they would check the records on Friday morning and walk around sending people home early if they were going to go over 40.

Anyone know anything about Employment Law??

Re: Anyone know anything about Employment Law??

Choose Another Board

Search Boards