Can a contract employee be salaried exempt? 2

[CivilMechDesignerNC]

Here's the scenario:
I work for company A who does contract design and engineering work for company B here in NC. Company A is a semi-permanently embedded contractor for company B. In January of this year, company B told my previous contract employer to hit the road and company A picked us up in our current positions. 7 out of 9 of us received salaried-exempt status (they didn't feel the other two qualified). I work as a Mechanical Designer. I have an AAS degree and 2 years expericance.

I don't feel I qualify on 2 counts:
1. I don't meet the test of being able to make decisions that affect the company because everything I do must be approved by a company B engineer. I can't just draw something up and tell our construction guys to put it in.
2. Working as a contract employee, I didn't think it was legal to be salaried-exempt. GE had a huge problem with this a few years ago, and now contract employees can only work for 1 year and must have a 90 day gap between years.

Thanks,

Mechanical/Civil Designer in NC

 

[KENAT]

I think the distinction may be that you need to conduct the test against your direct employer - Company A - not against their customer, Company B.

However if company 'B' is essentially a 'job shop' then it does seem a bit odd you're regarded as salary exempt.

Of course, this is kind of a legal question, so it might be better asked of legal, or at least HR, types.

I think similar has come up before, maybe look at forum784 or forum731.

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[mechengdude]

I work in a state next to you and work for a large company. Our Mechanical Designerss are hourly, not exempt. There has been much internal discussion about the topic. Hope this data point helps.

 

[livingston]

You work for company A. I don't know that it matters how company B has you designated. A company B has to check your work not because of your status but because you are a contractor not an employee.

Maybe I am missing something?

 

[CivilMechDesignerNC]

We were hourly under the company we worked for last year because the owner didn't think it was legal for a contractor to work for a company and be exempt. He told me that he had looked into in quite a bit, and decided it was in his best legal interest to make us hourly.

When I brought it to the attention of the HR person in company B, who made the decision to make us exempt, she told me that she was told that we were all engineers. Only one out of 9 is a PE, the rest of us at best have AAS degrees. Then they used the "Administrative Test" for determining exemption stating that we have to use "discretion and independant judgement" in our work since we no longer fit into the "Professional" catergory. In fact, the manual that I printed and showed to the manager states that "Engineering Technicians" is a non-exempt profession. That's what my degree is, no matter what they *call me*, I have a degree in Civil Engineering Technology.

 

[mechengdude]

I have to admit I'm a little confused reading all this "company A vs company B" stuff.

So a question back to you. Why do you care whether you are exempt or non-exempt? In my experience folks that had this discussion were always concerned with pay. Nothing wrong with that. What usually happens is somebody that was paid hourly was used to getting overtime, then they get switched to exempt and then realize oh crap now I don't get overtime.

 

[CivilMechDesignerNC]

I knew from the start that by being exempt, I would not be receiving any more overtime. That's why I've been fighting this since December when we were told that we would be hired by this other company. I fought against it publicly until the host company (company B) manager told me to shut up or get out. It would have been ok if they'd given us a raise to compromise, but 6 out of 9 of us got LOWER pay (two were cut by 25%) and all of us got worse benefits. We never signed a work contract and were told there would not be one or even an offer letter. This company is a Maintenance/Construction firm, not a design firm. They're used to offering $10/hr guys a job with a handshake. We're being as a test basis to see if they could also offer design services. So the way we're treated will be a precedent for all future employees.

I would feel bad about complaining about it if the host company didn't post record profits last year. I'm talking about them *shattering* previous records.

 

[KENAT]

So it seems you've expressed your concern/dissatisfaction and effectively been told to take it or leave it.

So now you can probably either:

1. Go to the labor board or whatever your state has to see if they'll intervene.

2. go to a lawyer.

3. Exercise your leave it option and find alternative employment.

The situation is unfortunate, you have my sympathy, but it doesn't sound like they'll be convinced by arguments from you about what the law says etc.

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[ctopher]

A positive note....you have a job.

Chris
SolidWorks 09 SP4.1
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[CivilMechDesignerNC]

You're right. I have some tough decisions to make. There aren't that many jobs available (I'm looking) in this area. Hopefully they'll realize what I do for them and compromise....

 

[MadMango]

They might realize your contributions after you leave... maybe, if you're lucky. From your description, they'll just find someone willing to work for lower wages and less benefits.

"Art without engineering is dreaming; Engineering without art is calculating."

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[ColonelSanders83]

Question 1) Are you a designer or an engineer?

Question 2) Why does HR think you are an engineer?

Question 3) If HR believes you are an engineer why are you allowing thins if you are a designer.

In my experience designer have a two year degree to allow them to get closer to first cut accuracy, however as you have stated above you are directed by and get approval of work from an engineer.

I would sit down with HR and inform them that you are currently misclassified (HR is unlikley to know whether you are and angineer or not unless you tell them). Ask them if they plan to rectify this misclassification.

If they give you the runaround I would go to the labor board as suggested above, followed by a layer. Due to your misclassification you can likley go to court and win a lawsuit (I have seen this happen before), they will likley be required to pay up for all previous unpaid overtime and classify you properly in the future.

While doing all of this I would also seek other employment.

Just my two cents.

A question properly stated is a problem half solved.

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[msquared48]

That was going to be my comment ctopher. And very relevant in today's economy I might add. Companys have the definite advantage here now in hiring -> a 90 degree shift from what it used to be - more balanced. It's disconcerting to say the least when there are ten guys outside the door ready to take your place at any wage.

Mike McCann
MMC Engineering
Motto: KISS
Motivation: Don't ask

 

[KENAT]

By the way, while it may not be fair, or even legal in some circumstances, taking your employer to the labor department or to court may not be appreciated by them and there may be repercussions.

Even beyond your current employer it is possible to get a bad reputation.

Not saying this means you shouldn't stand up for yourself, just don't be deluded that all will be well once you do.

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[ewh]

Regardless of whether you consider yourself an engineer, is the position catagorized as "engineer", or designer? If you are a designer in an engineer position, I think you may be SOL.

"Good to know you got shoes to wear when you find the floor." - [small]Robert Hunter[/small]

 

[CivilMechDesignerNC]

My title is "Mechanical/Civil Designer" as listed from my current employer.

ColonelSanders83:
Like I said before, I've publicly fought this since I first heard about it, even before working for this company (see above posts from 08:34 and 10:29). I have not "allowed" this to happen without a fight. I did sit down with HR and was told to quiet down by the host company manager, who is a friend of my family, and so I did (but only within the company). He said there would be negative consequences if I didn't. So as stated by KENAT at 10:38, I don't have very many choices. My choice currently is to take it until something else opens up.

Hopefully they can find someone else to do mechanical, civil, and surveying drawings for what they pay me. I was in training to become a pipe sketcher too, but that ended after 4 months when the other sketchers ran out of work. I even spec'ed out the surveying equipment that I use to be over everyone else's head out here so that if they try to get rid of me, they'll have $8500 worth of paper weights. That's still the case right now.

You guys are right, though, about being happy to have a job. The civil/surveying firms that I tried to hire on with during the housing bubble have laid everyone off. So I am happy to be in PetroChem right now to at least feed my family.