Exempt?
dcastaneda
24 Posts
The upper management has decided that every employee be classified as exempt including the receptionist and all assistants because they are salary employees. In all the information I have read there is more involved to determine this status. I have discussed with the Director of Operations the requirements to no avail; she feels all employees meet the qualifications for exempt status. Currently, regardless of how much time you work in addition to your normal work week, you are not compensated with overtime pay. This has become very frustrating. What can you suggest to help me to clarify this matter to her and what liabilities are we looking at if this problem is not rectified?
Comments
Your management needs to fully understand the legal downside of what they are doing. Calling everyone exempt will send up a RED FLAG to the DOL. It only takes one employee (or former employee) to complain to the DOL. Then you will have them breathing down your backs. And the costs can be enormous -- back pay for all of the employees based on the employee's estimates of how much overtime they did for the past three years and costs and attorney's fees. (companies have literally been hit with judgments in the millions over this type of pay violation).
If your managment won't listen to you, then tell them that they must run their plans by legal counsel. No employment attorney would agree that everyone is exempt.
Good Luck?
I suggest you call your friendly wage and hour folks, the federal kind and ask for their free publications that spell out in details the rights and wrongs about "Exempt and non-Exempt" classifications. Once you get them (the regulations) you can study up on the issues and facts and can produce the best TALKING PAPER in which, you can address the wants and needs of the senior leadership.
All of whom are out to lunch with their wants. There is a way to make every one salaried, however, salaried and "Exempt and NON-exempt" are not congruent. Both can be salaried: for the non-exempt "wage labor" you must use a "fixed salary for a fluctuating work week" which would include the computation of any expected overtime. In other words: I agree to work 50 hours a week for your company at X wage per hour+ O/T, you calculate that out and call this my salary for a 50 hour work week. If I work less than 50 hours I keep my agreed to salary; if I happen to be required to work 52 hours one week, payroll must recalculate and increase my pay for the additional 2 hours of overtime. if after a few weeks and the company finds that I am getting the job done in less time, then we re-figure the salary and in writing agree to a change in salary amount. You can do this for any wage rate starting at $5.15 per hour (unless your state has a higher minimum wage rate) for the regular 40 hour and $7.73 for 10 hours and my salary would be $206.00 for the 40 hours and $77.30 for the 10 hours of O/T and it is $283.30 per week gross. Do this and the company will be legal and in writing with signatures. I am still Non-Exempt, but I am salaried, just oh slightly more difficult to manage as the time goes up and down from the agreed to amount. But, we accomplished the senior leaders wishes for having everyone salaried.
It is so good to have all this knowledge and experience and glad I don't have to walk the grounds of the unknowning bosses; make them smart and proud of you by keeping their "a--" out of deep "Hog Poop"! Believe me, they can walk into more "stuff" just by coming to work each day, they need to spend more time on the golf course drumming up business, than mucking around with the HR's very difficult world when the bosses are into an area of "litigation minefields".
Oh, the regulations you want to ask for are free! There are three: Regulations Part 541: DEFINING THE TERMS, EXECUTIVE, ADMINISTRATIVE, PROFESSIONAL, AND OUTSIDE SALES; Regulations, Part 778:INTERPRETATIVE BULLETIN ON OVERT5IME COMPENSATION; and Regulations, Part 785: HOURS WORKED UNDER THE FAIR LABOR STANDARDS ACT OF 1983, AS AMENDED. Once you read them, Index and HI-LITE them, as needed to make a quick reference in front of any senior leader. They will be very happy for your work, especially, when you inform them that in many areas of HR they can be personally accountable for their neglect of Federal and State Laws. Their pockets are not as deep as the company and you'll be ever so glad to help keep them afloat.
Happy hunting for the right answers to feed to the "boneheads" that don't listen and who, think they already know the law. PORK
Get the regulations and teach your "bonehead" leaders before they get into "very hot water". It is these type of issues that drive employees to UNIONS to get their rightful due! The HR and staff should be the union representative for non-union shops!
TRAP #5 IS ALSO VERY GOOD: TO KEEP OT COST DOWN, REQUIRE OR FORCE MANAGERS AND OTHER PROFESSIONALS TO WORK THE EXTRA HOURS RATHER THAN PAY OVERTIME!!! Uncle Sam and State Sam just love that pressure cooker and all of a sudden the previous exempt employee looses his/her exempt status, and we have to calculate their pay based on the salary and a 40 hour work week plus overtime. You see Uncle Sams wants their tax money and if the employer trys to evade or divert his/their resources they get very mad and come very dangerously close to becoming belligerent. You do not want to have an audit open up any and all boxes; been there, and done that, and I considered myself an educated "x-bonehead"! Pork