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Thursday, March 27, 2008

Overtime

I am with a very large engineering company. They have classified me as non-exempt; however, they only pay straight time when I work overtime. They claim that because I have over 15-years experience, this is the reason. CAN THEY DO THAT and be within the labor law.

Ummm, no. Non-exempt, by definition means that you are not exempt from the Fair Labor Standards Act. Over 40 hours a week (or 8 hours a day if you live in certain states), requires overtime pay.

They are totally lame.

There are some IT jobs that allow you to be paid by the hour, but not be eligible for overtime. But, there are NO jobs that say, "because you have lots of experience, you are now exempt." But, if you were exempt, they would be paying you straight salary regardless of the hours you work.

Go and ask again and ask them to show you the statute that allows them to refrain from paying you overtime. They won't be able to produce it (unless you are one of those special IT people...) Ask for back pay. If they say no, file a complaint with the Department of Labor.

11 comments:

Anonymous said...

My question is, is he sure that he is being classified as exempt. You can be exempt and still be paid on an hourly basis. There are carve-outs for certain healthcare positions i.e. doctors as well as highly compensated computer professions. It is not that uncommon, especially in government contracting world, where you might need to match billed hours to pay, and pay exempt employees on an hourly basis and any “OT” would be at a straight time rate. Paying OT on some highly compensated IT professionals could actually cause them to make more then the President, which is not allowed for government employees or contractors.

HR Chickie said...

I would also ask if he works in California... As always, CA has changed the law regarding IT professionals and most IT positions are being classified as non-exempt employees. However, regardless of their pay rate, they must be paid at time and a half for any time worked over 40 hours in one week or 8 hours in one day. Either way, in any state, if he is classified as non-exempt, he does legally need to be paid OT (just like Evil HR Lady said!).

Just another HR lady... said...

Every time I read one of these questions, I am glad that we don't have to deal with "exempt" vs "non-exempt" in Canada. ;-)

Just another HR lady... said...

Oops...before anyone mentions it...I should have mentioned in my note above also, that in Canada we do have categories of those who qualify for o/t vs those who don't, but it's a very clear definition based on the applicable federal or provincial legislation. We don't "deem" anyone into a certain category, no room left for interpretation.

HR Wench said...

Another tidbit to think about: most states allow companies to define their own workweek as long as they comply with a rule or two. It could be Sun-Sat or or Mon-Sun or Tues-Mon or whatever. If you're in a state that says OT for non-exempts = any hours worked over 40 in a week be sure you check your employee handbook to see what the workweek is.

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Anonymous said...

To clarify: Be advised that the position is classified as technician---not engineering, IT, management, etc., which could be classified as professional, thus exempt. The state for which this is occurring only requires OT pay for hours worked over forty, in accordance to the Fair Labor Act, or others. Furthermore, if the issue is pushed it is assumed that the employee will be fired. Therefore, according to the DOL, one can file a complaint up to 2-years after the fact. It is believed that this is the best option, in addition to a strong paper-trail, in order to avoid retaliation from the employer.

Anonymous said...

I am the Sr. HR guy for an engineering company that does business in several states. One of the most difficult things I have had to learn in this business is the management of exempt vs. non-exempt status. We pay straight time overtime for all billable overtime worked by our exempt staff. If the work is not billable, their pay reverts to their weekly salary.

Because of the degree of specialization, the ability to exercise discretion, and the base wage at which most of our employees work; they are qualified as exempt under both the short-form and long-form questions. Unfortunately, the line at which they meet these criteria is a little blurry; so it requires a lot of oversight to keep stay kosher. I'd ask your HR person to explain the rationale for your role being classified as exempt. It really has much less to do with your title (though I'd argue against calling an exempt role "technician" to avoid just this type of dispute) than it does with your job description. If they can't substantiate that rationale, you probably should talk to the DOL.

HR Wench said...

The FLSA was amended a bit in 2004 so be sure you are up on the newest regs. http://www.dol.gov/esa/whd/flsa/

lignum said...

You have up to 2 years to file a complaint at DOL. Hold on to all of your papers, if you think you'll be looking for another job soon, hold off complaining (you don't want them to victimize you)and when you're about ready to leave take it to the DOL. If you like the job and think you'll hang in there for a while, speak with HR and try to understand what's happening. If you're still not satisfied, speak with someone at DOL, there's no sense in waiting.

Anonymous said...

Just Another HR Lady's comments, albeit 3 years old, are most definitely misleading.

All provinces in Canada make classifications for exempt vs. non-exempt. Those classifications are most definitely "open to interpretation" depending on location, position, industry, etc.