paying overtime to only one person in a department
exec
1 Post
An exempt employee negotiated and receives overtime pay for all hours worked over 37.5 per week. Other people doing the same job in the same department do not receive overtime pay, regardless of time worked. Does my firm have a liability issue with regards to the employees who are not compensated for their overtime work?
Comments
This situation could also have a devasting effect on moral if word gets out. If I were one of those employees who was not paid for extra hours, and knew someone else was, my employer would have a hard time getting me to work any extra hours.
Good Luck!
>worked over 37.5 per week. Other people doing the same job in the same
>department do not receive overtime pay, regardless of time worked.
>Does my firm have a liability issue with regards to the employees who
>are not compensated for their overtime work?
Warning Will Robinson!!!
I hate to sound like th robot in Lost In Space, but unfortunately, this practice threatens to leave you marooned like the ill-fated Robinson family. There are so many potential down-sides to this one, it is hard to see where there is an upside, at least for the employer.
1. Yes, you could be jeopardizing the exempt status of this positions by treating one incumbent as if he/she were nonexempt. The bigger questions is, do you really know that the job is an exempt position at all? Has a proper job analysis been done to be sure that this job meets one of the legal exemptions provided under the FLSA?
2. Yes, you have some potential liability to the other employees, since you are treating one employee different from others in the same classification. This is what is know as "disparate treatment." If the favored employee is of a different race, relgion, gender, age, etc, etc, etc... from the non-favored employees then you could have a Title VII discrimination issue or issues. If one or more of the non-favored employees is disabled and the favored employee is not then you could have and ADA issue.
3. If these positions are truly "professional" or "administrative" in the FLSA legal sense, you still may have an issue under the National Labor Relations Act. By exhibiting such blatant favortism for one employee over others you are giving a Union Organizer a wide open issue to begain an run at organizaing a bargaining unit in this group. I have seen "professional and technical" bargaining units certified in my day, and believe me, you do not want to be on the receiving end of that "gift."
My advice is that
a) the hiring Manager needs to be educated about issues like the FLSA, ADA, Title VII, and etc, etc., and etc...
b) you need to get some solid hiring procedures in place that require a sign-off in HR before any offers are made, or "deals" negotiated with new hires.
Believe me-an ounce of prevention is a point of cure in these matters.
When I first came to work in my present position, there were similar cases where "deals" had been made with previous managers (according to the employee affected) that they could do certain things outside the norm. Of course, none of this was in writing. I took the stance that if it was not legal of fair to others, regardless of if it was in writing or not, it would not be condoned or honored under my watch. Of course, there was a lot of anger and resentment towards the "Evil Human Resource Director", but I could sleep nights knowing I was doing the right thing and trying to be fair and consistent under the law.
Regarding failure to pay the other employees OT when they have earned it is a direct violation of CA Labor Law. Should any of these employees whom you have failed to adequately compensate for overtime decide to file a claim your organization would be at risk.
I suggest you contact an attorney and get some hard legal advice on how to do damage control...now.