Exempt vs. Non-Exempt and Money... 1

[swearingen]

A post in the Language/Grammar forum reminded me of a conflict that is happening in my area - south Louisiana.

Last week, my office (say, Company A) was out of power and we were instructed to stay home due to a minor wind storm.

Company B was out of power until Tuesday night and sent out an email (at 9:00pm) to its employees to show up Wednesday. Since 90% of the employees were out of power and they couldn't get email (who would expect one from work at 9:00pm any way?), most didn't show up until Thursday.

Company C was out of power all week as well.

Now, after Katrina, most companies did not give any benefits to their employees - the employees had to use vacation time for the time the office was closed. Well, times have changed. Company B paid for two days (Monday was the Labor Day holiday). Company C was incredibly generous and paid for the entire week. Company A is giving vacation hours equivalent to 65% of the time off (35% comes out of our vacation time).

The question came up as to whether the companies should "charge" us for time when the office is closed and inaccessible. The argument was made that the Wal-Mart down the street has non-exempt employees and they only get paid for the hours they work. Fair enough. But does exempt status require the companies to pay us for the full time the office was unavailable? Is there a law in the books stating this?



If you "heard" it on the internet, it's guilty until proven innocent. - DCS

 

[Mr168]

I don't know if there is any law regarding it or not. Exempt status here gets paid 100% regular time if the office is closed, regardless of how long it is. The supervisor can order additional work hours to make up for lost hours at his discretion. If the office doesn't close/reopens but weather conditions still prohibit the worker from coming in, they can either use vacation time, time off without pay, or make up their time.

 

[KENAT]

Whatever option screws the 'exempt' employees most is probably the law.

KENAT, probably the least qualified checker you'll ever meet...

 

[JMirisola]

As I understand it, and this may be state-to-state versus national, if an exempt worker shows up for work for an hour, then leaves early, s/he gets paid for the day. If said worker can't finish the week due to adverse weather conditions, they get paid for their 40 hours. If said worker never started their work-week, and couldn't because of adverse weather, it's up to the company's discretion.
Again, this is only my understanding...which, given the fact that my mind is mush today, could mean absolutely bubkis.

Jeff Mirisola, CSWP, Certified DriveWorks AE

http://designsmarter.typepad.com/jeffs_blog

 

[Mr168]

In regards to JMirisola's post, that must be a state-to-state thing. Here, if you show up and leave early, you get paid for 2 hours or your actual time, whichever is greater.

 

[IRstuff]

My recollection is that in California, if you show up for work, but are turned back, you get paid for the day. If you were informed to not come in, you don't get paid.

We were placed in that situation during the riots, and most people were given phone calls to not come it, and had to make it back up as vacation or working the Friday after Thanksgiving. The few that missed the phone call, or knew better, that showed up, were charged to overhead and were paid.

TTFN

FAQ731-376

 

[civilperson]

No law applies to exempt employees except overtime can be non-paid or straight time or comp time at the companies discretion. Your salary is per month or per week or per two weeks and should be steady no matter the hours worked. This is NOT law but common practice and is arrived at by vacation, holidays, sick leave, PTO, or extraordinary office hours in shortened periods.

 

[ewh]

According to the Dept of Labor, "Being paid on a "salary basis" means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequently, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee's work. Subject to exceptions listed below, an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours workid. Exemp employees do not need to be paid for any workweek in which they perform no work." See

http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17g_salary.pdf

I believe that the employer can deduct unworked wages from accumulated vacation, but still must pay for the entire week, as long as work was performed during that week, even if vacation has not been accrued.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty. - [small]Thomas Jefferson [/small]

 

[StressGuy]

Interesting thread and web references, ewh. It looks like you are correct about the deducting from vacation time. I found this opinion letter on the Department of Labor site that addresses the issue:

http://www.dol.gov/esa/whd/opinion/FLSA/2005/2005_10_24_41_FLSA.pdf

Edward L. Klein
Pipe Stress Engineer
Houston, Texas

"All the world is a Spring"

All opinions expressed here are my own and not my company's.

 

[Noctone]

This thread couldn't be more timely, although my question is slightly different.

I and several others (engineers, PMs, etc.) at my company are contract employees through Aerotek.

Today we got a few bombshells dropped on us, the most important being the following: all engineers, project managers and construction coordinators are now considered exempt from receiving time and a half pay on overtime.

The important thing to note here is that we are all paid on an hourly rate (i.e. we are not salaried). According to my reading of the Fair Labor Standards Act, we cannot be exempt unless we are paid on a salary basis. Am I correct?

 

[KENAT]

Worry first about what your Aerotek contract says. As I recall mine said I got paid for any extra hours, which of course meant they got a cut of any extra hours.

I had to read & sign the contract etc before I was allowed to work through Aerotek, I assume the same applied to you.

KENAT, probably the least qualified checker you'll ever meet...

 

[whyun]

Highly-compensated workers (performing office/non-manual work) are automatically exempt.

http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17h_highly_comp.pdf

 

[Noctone]

KENAT:

It's not a matter of whether or not we're getting paid - we will, at base rate - it's that we will no longer be paid time and a half. The contract is irrelevant for two reasons:

1) You can't sign away your rights when it comes to labor laws.
2) They're sending out new contracts in a couple of weeks that presumably we'll have to sign to continue employment, so the current contract will not be applicable for much longer.

(2) actually brings up another sticking point: we were told that the new rules will be in effect Monday, even though we're not signing the new contract until a couple of weeks from now. I'm not entirely sure how this is legal either. The only explanation that we were given is that our contracts are in fact "agreements" and not actual "contracts." What that means in legal terms is beyond my current knowledge base.

whyun: The highly-compensated worker exemption does not apply here. Most of us are not making even close to that much. Even for the one or two employees making that much, the exemption still does not apply because they are not being paid on a salary basis. The highly-compensated worker exemption applies to salaried employees that meet some, but not all, of the criteria of the executive, administrative or professional worker exemptions.

 

[apsix]

It looks as if they have assessed the job market and figure that you won't/can't go elsewhere.

 

[IRstuff]

"Contract employee" is potentially a dodge that companies like Microsoft have used in the past to make those employees exempt, by claiming they were "independent contractors." However, a court case found that the employees were not really "independent" contractors, as they were being directed, supervised, and controlled by company management, thereby failing to be "independent."

I would go find a hungry labor lawyer. See:

http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17d_professional.pdf

I think that being paid hourly makes you nonexempt.

TTFN

FAQ731-376

 

[TDAA]

Not to mention, it does not matter who you are contracted to by Aerotek. You are Aerotek's employee, not thier client's employee.

If you are working for Aerotek on an hourly basis, you are non-exempt, and should be paid at 1.5 times your rate.

Unless your (Noctone) "Electrical" work falls under the computer related exemptions (not likely based on your brief post):

http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17e_computer.pdf

 

[Noctone]

I'd laugh in their faces if they tried to pull the computer-related exemption on us. Especially since some of us are paid well below $27.63/hr (I and another engineer are at $20/hr).

It will be interesting to see how the week plays out, I sent an email on Friday to the account manager at Aerotek telling him that what they are trying to do is illegal and that I had confirmed as such with the Department of Labor.

Interestingly enough, another employee who spoke up during the meeting at which the new terms were announced has possibly been seeing some repercussions. He moved here from Texas and has always been receiving his paycheck here at the office. Last week was his first paycheck after the meeting, and wouldn't you know it they sent his paycheck down to Texas. Meanwhile, they won't pay him per diem because they say that he doesn't live in Texas. Hmmmmmm.