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Wednesday, April 30, 2008

Taking Advantage of an Exempt Employee

I’m a medical administrator of a nonprofit organization. I am married and have young children. When I was hired, my job description indicated that my work was split between 50% patient care and 50% administrative and I was told it was a 37.5 hour work week. I didn’t quite understand what exempt was at the time. I generally worked between 40 – 45 hours a week.

Two years ago, my new boss changed my job description despite my protests and indicated that it should be 80% patient care and 20% admin. However I continue to do the same admin time as before. In fact in the last two years, two other positions have been downsized or changed with “green” replacements at lower salaries, but some of their duties have fallen into my lap by default because they didn’t have the experience or credentials to do the job. I’ve done what needs to get done. I strive for excellence. Now I’m working 50-60 hours a week. I’ve tried whatever I could to streamline processes, addressed any inefficiencies as best as I can including delegating to others or giving back tasks to those “green” individuals, to bring those hours down. I’ve gotten some relief with (not even) a day’s time admin asst. (something I requested), but I’m getting burned out because my boss continues to give me more projects and when I complain, he says “You’re exempt”; unfortunately there really isn’t anyone else around that could do these projects. We are a small organization. He and the others executive administrators work long hours because their kids are grown. I probably would too if my kids were grown. MY family life is coming apart.

I know I could ask for monetary compensation and I would probably be granted it. However I don’t really want monetary compensation, I want to work less hours so I can spend more time with my family. I suspect that the only solution left is to leave the job I love. The only advantage I have at this point is that it will be hard to replace me. I hope you can help me.

So here are my questions:

How does one determine what is considered reasonable for one person to do and how does one negotiate this? What prevents an employer from collapsing two full time jobs into one and calling it exempt? Did I legally (I know you are not a lawyer) have a say when my job description changed? How do I say no to something without risking getting fired? What do you think I should do now? Thanks, I look forward to getting your answer!

There aren't too many legal protections for the exempt employee--that's why we call you exempt, because you are exempt from the protections of the Fair Labor Standards Act. So, no, you can't sue or prevent an employer from changing your job description. (And I answer this as a non-lawyer who does not give legal advice.)

What is reasonable? Well, I know a heck of a lot of people who regularly work 50-60 hour weeks. It's part of what is expected in many jobs. They whine and complain about it, of course, but it's what is expected and everybody does it.

I myself, am whiny about such things, but I do it when required. I wouldn't, however, do it all the time. I would find a new job.

See, that's the beauty of the situation--your boss doesn't hold all the power. You can always leave. (Sometimes, I think people worry more about quitting an unpleasant job than they do about leaving an unpleasant marriage, but that's another topic altogether.)

Your boss knows that you can always leave. Therefore, you need to use this to your advantage. Not by threatening or throwing a fit, but by being confident. Schedule a meeting and explain your concerns. When he says, "you're exempt!" you can reply that, yes, you are aware of that, but your responsibilities have grown to the point that you can no longer accomplish all of them within a reasonable time frame.

Ask him how many hours a week he thinks is reasonable. "You're exempt! You get the job done!" He'll say. "Yes, but how many hours do you think I should be working? When I was hired, my expectations were at 40-45. I'm now working 50-60. Can you help me either prioritize or work more efficiently so that I can accomplish everything in 40-45 hours per week?"

If you've had these discussions, but no success, then it's time to start looking for a new job. But, first, ask for a raise. You said you could probably get one. So, get one. It will help you in your job hunt if your salary is higher.

Keep in mind that a similar job in a different place may require similar hours. That's the way it is.

You could also attempt to negotiate something different. Flextime, working from home for some of the stuff (obviously, patient care couldn't be done from home), working 4 days a week instead of 5. All these things could help you improve your work-life balance without cutting the amount of work you do.

If your boss truly values you--and is not an idiot--he'll be open to solutions. He knows you can quit and it's harder to fill a lousy job than a good one.

And, if you want to climb in the bitter tree with me, after I quit one job, they replaced me--with 4 people. FOUR! And not only did they replace me with four people, all 4 of them made at least $25,000 more a year than I did. Can you say I was under appreciated and over-worked? Hmmm, just a little. It happens. It stinks.

Good luck.


Anonymous said...

I would love to climb in the bitter tree with you, EHR.

Anonymous said...

Evil HR Lady - You've really missed the ball on this one, and frankly - I am really wondering about your alleged level of experience. I know it must be quite satisfactory to sit up in the bitter tree and tell your readers to suck it up. But when you purport to offer HR advice, please make at least the minimal attempt to do so.

After you got done getting all smug and self superior with your correspondent, maybe you could have taken your head out of that warm dark place and suggested that she may not, in fact, be an exempt employee, and that companies routinely deliberately misclassify personnel as exempt in order to avoid paying overtime.

You might have also suggested that your correspondent reach out to an employment lawyer about this. He or she could, in fairly short order, determine whether or not the exempt classification is appropriate, and if not, what the available remedies are.

You might have also considered offering some basic information about how an employee is classified as either exempt or non-exempt. This stuff is pretty well laid out on the FLSA website:

As an HR professional, you should have at least the minimum understanding that despite a fancy title like "administrator," the position does not meet the criteria for "exempt status" unless:

1 - The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
2 - The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

You don't have to be an attorney to give out this information, so don't hide your incompetence and lack of basic HR knowledge behind a cutsie INAL disclaimer.

Evil HR Lady said...

Boy, anonymous, it seems like you are a bit bitter yourself. The question writer didn't think her classification was incorrect, so why should I?

Geesh, if you are going to be so accusatory, you can at least use a name so we can identify who you are.

Katherine said...

Well, you call yourself "Evil HR Lady" not "Omniscient, Omnipotent HR Lady", so I'm thinking anonymous climbed out of the wrong side of bed!

"You might also want to make sure that you're classified correctly as exempt" would have been a better way to start that comment!

I agree with anon. in the spirit of the original questioner should make sure the position should be exempt.
(However, I think my delivery is a bit more appropriate!)

One of the world's largest insurance companies has had to pay major overtime due to improper classification and not paying overtime, more than once.

Also, the department of labor, at least in my state, California, is terribly slow in responding to complaints. I would also strongly recommend the seeking employment elsewhere option to the original questioner.

Anonymous said...
This comment has been removed by a blog administrator.
HR Godess said...

Wow! It's one thing to disagree with the EHRL and it's another to take personal shots at her. If you think you know more than her, open your own blog. If you don't like her advice, don't use it.

People like you are the reason HR professionals have the problems they do; you think you know more than we do. My response to that is, don't ask us because you clearly may not like our answer!

Lea Setegn said...

Wow, Evil, I do have to agree with one thing that Anonymous said -- perhaps it's time to no longer allow anonymous comments! Hopefully no other Internet trolls like this Anonymous will come your way, but you never know.

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

As an attorney, similar to the anonymous friend, I have a different view. While anonymous may be correct regarding improper designation, I always shudder when someone suggests seeing an attorney as a good way to get what you want out of a job. From my experience the following will happen if the writer contacts an employment lawyer to fight her boss over her exempt/non-exempt status:

1. She will pay the attorney a lot of money.

2. The lawyer will write nasty letters, file suit, and she may win. If that is the case she will use a lot of her winnings to pay her attorney, she will then be out of a job because even though her company can't fire her for suing she will hate working there and her bosses will hate having her there. She will have to find a new job. Yes, yes I know, she can then sue them for constructive termination. Another lawsuit, hooray! More money for me.

3. Lawsuits, even fast ones take years. Even lawsuits that settle take years.

But what about the principle of the matter? Very few principles are worth destroying your life with the stress, expense, and horrors of a lawsuit.

4. There is a slight possibility that the lawyer will write a quick letter, and her boss will change the designation, and everyone will be happy forever, but I doubt it.

In my opinion, as a lawyer, it is never the easiest option to attempt a lawsuit. However, if you do, be prepared for a long, confusing, stressful, and horrible process, that will cost you tens of thousands of dollars, and may end up getting you nothing. Remember, filing a lawsuit is like gambling. You have certain odds that you may win, but they are just odds, and it costs an awful lot to play.

I am sure that other attorneys disagree with me, but I have rarely seen anyone happy at the end of a lawsuit, including the "winners".

So, in conclusion, yes you may have a good case, you may be able to get your designation changed, you may be eligible for unpaid overtime, and yes you have a right to go after it. I just hope that you understand that there are significant financial and emotional costs to that route, as well.

HR Godess said...

Anonymous - I'm relieved that you're not in human resources because you're CLEARLY not a people person!

Evil HR Lady said...

Anonymous, you are free to disagree with me, you are free to even say that I'm incompetent (I'm not), but you are not free to use foul language. This blog is strictly rated G.

You can feel free to re-post your thoughts with the expletives removed. But, no more expletives.

And our other anonymous attorney--I agree with your assessment. I've seen tons of people go get a lawyer. Very few come out ahead.

Alison said...

Wow, Anonymous (the first one, not the lawyer) is way out of line. What a jerk.

Anyway, I think EHRL's advice is exactly right. The issue is ultimately that you and your boss have different ideas about how much you should be working and you need to address it head-on. Saying "you're exempt" is an unbelievably lame reply to "I want to find a way to work fewer hours." The appropriate response would be for your boss to either work with you on ways to make that happen to or to tell you, "This job, unfortunately, is what it is. I know it's evolved into something different than when we first hired you, but because of x, y, and z, this is the way it needs to stay." Then you can make an informed decision about whether you want to stay there or not.

lydiajane said...

In order to address this issue professionally, you might want to document how you are spending your tme, i.e. what is taking 50-60 hours a week to get the job done. Keep a daily log, and set up a meeting with your boss. Show him your log, and in a non-confrontational way let him know that you can not keep up this work load, and what would s/he recommend you work together to resolve this issue. Give him/her all the opportunity to work it out. If s/he really values your contributions and knows you are serious about your need for a work/life balance s/he should do what it takes to make it work.

If s/he doesn't, then you are indeed up against a wall, and either have to suck it up - or look elsewhere, quietly and with great stealth....because if h/she won't support you in this very reasonable request then you can not expect s/he to respond reasonably if s/he knows you have decided to go elsewhere. Good luck!

Anonymous said...

I can’t speak for EHRL but I would have assumed it was exempt as well. She/He clearly has supervisory responsibility and based on the credentials comment probably hits the learned professions exception as well.

Anonymous said...

Hmm..I'll have to chime in and say I don't think there's anything wrong with the advice EHL gave either. The question was whether anything could be done to alleviate the extra hours, because the employee was feeling taken care of, not whether or not the position was truly exempt. Assuming this employee also understands the issues at heart with FLSA status, I think the answer 'nothing can be done' is totally appropriate if the job is exempt. I have plenty of exempt employees who log 60+ hrs each week (it's also why we pay them boat loads of money, but that's a separate post...). If the employee is prioritizing work-life balance over an (I assume) rewarding but demanding job, then that's the decision s/he needs to make. Now is the company smart for letting qualified and capable employees burn out with the extra hours? Perhaps not, but that's also a different question. The post states this is a non-profit, so maybe budget is an issue. Regardless, if you know you're not getting overtime in a job, yet it's asking for regular commitments of 50+ hours a week - then it really is a choice the employee/applicant needs to make.

Anonymous said...

Oops..."because the employee was feeling taken care of" should be "because the employee was feeling taken advantage of." Stupid typos. Although to anonymous' defense, I'm not a people person either. Haha...I find many of my colleagues in HR wouldn't classify themselves that way either. :)

Anonymous said...

One thing that I've found to be helpful is simply tell the boss: "here's all the things you've given me to do, they're just not all going to get done this week, what should I work on first?" That puts it back on the higher up to set the priority of all their projects and eventually may clue them in that you're drowning.