Tags: attorney, company, employment, exempt, hourly, kentucky, labor, law, lawyer, legal, non-exempt-salary, paid, professional
The company I have recently started work for has told me that I am professional exempt and that I get paid for only hours that I work and I am not salary nor hourly but I get an hourly wage. However, any overtime we get is straight time and not the time and half.
Eg. If I work 45 hours I will get my $14 an hour for 45 hours and if I work 30 hours I get paid $14 an hour for 30 hours.
However, my employment agreement states a weekly salary.
Now I did some investigating on the Dept of Labor website and described what a professional exempt position would entail and it does not match any of the criteria. I do not have a degree nor was there any pretest for this position. This position is a human resources type job. My immediate manager states the position is a salary non-exempt position but the HR dept says professional exempt. Who is right and is it right to get paid the way I do. Mind you, the rest of the employees are paid the same and none of us were explained anything about this prior to starting this position or have ever heard of this before. Thanks for info you can provide!
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- 34 Comments
- The FLSA applies to public agencies, such as school dristrics. However if you are a teacher, as Scott indicated, you are exempt from overtime. Read this
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/29CFR541.303.htm#1; Sat, 18 Nov 2006 12:36:00 GMT
- I did., in local DOL office in California. That's where they told me that they do not have outhorization over school districts.#2; Sat, 18 Nov 2006 16:45:00 GMT
- Thank you Pattymd. I reviewed exempt criteria and it seems that grant writer is somewhere between adminitrative and professional exemption, however, it does not exactly fit in neither. I also, checked how this position is being classified at several universities, school district and other institutions. It vary.
It is quite confusing. Perhaps that's why people go to the courts. The way my work is organized, I would say it should be non-exempt.
Thanks for the link#3; Sun, 19 Nov 2006 12:38:00 GMT
- I believe what you are describing may fall under the fluctuating work week method. This link explains further: http://www.dol.gov/dol/allcfr/esa/Title_29/Part_778/29CFR778.114.htm.
If you are correctly classified as exempt, it's "possible" that your pay arrangement is legal. Pattymd care to offer any insight?
Regarding your FSLA classification, there are several common exemptions. This link reviews the most common ones: http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17a_overview.htm.
While you may not be correctly classified as "professional", it is possible that you are correctly classified as exempt under one of the other choices (i.e. administrative exemption).#4; Fri, 17 Nov 2006 19:36:00 GMT
- Yes, it's the plan itself that must provide at least 5 days per year; the fact that it is prorated for mid-year hires is irrelevant.
How likely it is that you are going to be terminated for your "investigations", we have no way of knowing; you know your company better than we do. You cannot legally be fired for reporting an alleged violation of law to the proper regulatory authority. If you didn't do so, you can legally be fired for being a PITA internally. (sarcasm, please don't take offense ;) )#5; Fri, 08 Dec 2006 04:44:00 GMT
- 1. Did you read the link robb71 gave you on the 17th? That's how you tell. Or you call the DOL, as I've advised several times.
2. Yes, that's perfectly legal. Didn't I say that already? :confused:
3. It's not normal, but sometimes employer do that because it's all employees understand.
I don't mean to be rude here, but we're REALLY beating this thing to death and not coming any closer to a resolution. If you think you've been misclassified, contact the state DOL and file for unpaid overtime. I don't know what else I, or anybody else here, can tell you.#6; Thu, 14 Dec 2006 10:07:00 GMT
- There is nothing in the law that says that exempt employees cannot be "closely monitored", be required to clock in/out, or use time off in company-specified blocks. Again, you can always contact the federal DOL if you want an opinion from them.#7; Thu, 14 Dec 2006 07:57:00 GMT
- You're asking about breaks. You really should have started your own thread instead of tacking your question on to a thread that's over 7 months old and is on a different subject.
Here are the laws in Kentucky re: breaks and meal periods.
No employer shall require any employee to work without a rest period of at least ten (10) minutes during each four (4) hours worked except those employees who are under the Federal Railway Labor Act. This shall be in addition to the regularly scheduled lunch period. No reduction in compensation shall be made for hourly or salaried employees.
For additional information, select a link below:
KRS 337.365 Rest periods
803 KAR 1:065 Hours worked
Employers, except those subject to the Federal Railway Labor Act, shall grant their employees a reasonable period for lunch, and such time shall be as close to the middle of the employee's scheduled work shift as possible. In no case shall an employee be required to take a lunch period sooner than three (3) hours after the work shift commences, nor more than five (5) hours from the time the work shift commences. This section shall not be construed to negate any provision of a collective bargaining agreement or mutual agreement between the employee and employer.
For additional information on lunch periods, select a link below:
KRS 337.355 Lunch periods
803 KAR 1:065 Hours worked
A med tech is likely to be nonexempt, as you do not actually practice medicine, such as a physician does. Having said that, however, and although the law does not state so, there are also often exceptions to the rest break and meal period laws (in some states) for jobs/situations where you are the only person on duty doing your particular job. This would require you be paid for all the time worked.
I'm confused, however, how not being able to leave the premises results in not getting a break. Are you subject to call during your break/meal period if you are needed? Kentucky law does not, to my knowledge, prohibit the employer from requiring you to stay on the premises.
You can certainly contact the KY DOL if you want to.#8; Mon, 23 Jul 2007 01:06:00 GMT
- Thanks for your help. Now I am on a wait and see basis.
No offense taken..I was starting to wonder myself :D
I will keep you posted!#9; Fri, 08 Dec 2006 04:58:00 GMT
- I have no idea what they're talking about. When you get the response, if you still have questions, you can post back. However, I have a feeling that this may be an issue that is going to have to be resolved in terms of your agreement/contract.#10; Sat, 02 Dec 2006 12:51:00 GMT
- If you are properly classified as exempt under FLSA, there are very few exceptions to when your pay may be docked (i.e. intermittant FMLA and initial/terminal week of employment).
Also if time is missed, it is ok for the employer to apply PTO (vacation et al). After all that's what it's there for. The problem exists if when a partial day is missed and no PTO exists, the exempt worker must still receive the full day's pay.
If you are salary non-exempt, you should receive overtime pay when it's worked. However if you are correctly classified as exempt, I'd have some concerns. It's always ok to pay more than promised; but when your pay falls below the promised amount, that's a reason for concern. I suppose your first step is to determine your "correct" classification. This should put the rest of your issues to rest. If you continue to get mixed information from your boss and HR, you are always welcome to contact DOL directly and request a determination.#11; Sat, 18 Nov 2006 08:05:00 GMT
- And knowing the little bit I do about what a "Grants Developer" does, my first impression is that you could be classified as an exempt employee.
http://www.dir.ca.gov/IWC/IWCArticle4.pdf#12; Sun, 19 Nov 2006 06:36:00 GMT
- Thanks for your fast response. However, I am not sure I fall into the flucuating hours thing. We all all required to work the regular 40 hour work week M-F 8-5...usually only if sick time etc. is used up is when we get unpaid time off...so that would be where getting under 40 would come into play. Like the other day, I had to leave early and we are supposed to try to make up time,otherwise, we are only paid what we work. Basically, I work no different than if I were salary the only difference is that when we work over 40 hours we get 14 an hour. But, like I said if you need time off or don't work the 40 then you are treated as hourly.
Another thing, one of my colleagues was forced to use her sick, vacation..etc to make up her time off. Is this right as well?#13; Sat, 18 Nov 2006 06:02:00 GMT
- Teresa, are you a teacher?
If so, you are out of luck.#14; Sat, 18 Nov 2006 12:30:00 GMT
- Thank you so much for shedding some light on this. I believe I am exempt for that is what I was told by the HR manager. My immediate manager said this is a fairly new thing (about 2 years) and is not quite sure of how it really works. It is also not a normal situation in which I work. I work for company A which has a purchase service agreement with company B and we work onsite with company B and was told by my manager that its not a company A wide thing just our small group located at company B. (and not a company B thing as well) We document time for company B and company A bills B for our time and then we input our time to get paid with company A. Would there be any laws allowing the way we are paid thru a situation like this? Wondering if exempt or non-exempt is an exception to this or the law regardless.
You said <If you are salary non-exempt, you should receive overtime pay when it's worked.> Are you meaning time and half or straight? B/c we are paid straight when OT is worked.#15; Sat, 18 Nov 2006 10:18:00 GMT
- It is impossible for the employer to classify you as an exempt employee. To be exempt under 13(a)1 29 CFR 541, (executive, administrative, or professional) you MUST be paid on a salary basis every single week. As you indicated your are paid $14 per hour, this single action on part of your employer makes you a non-exempt employee. The employer is correct in not paying you for absences. He is required to pay for actual hours worked. However in workweek in which you work over 40 hours, employer is INCORRECT, he must pay you the extra time premium overtime pay. As an hourly paid employees your are correct in that fluctuation workweek is not applicable in your case, you must be paid on s salary basis, for the fluctuating workweek to apply. You are due overtime when you worked over 40 hours in a workweek, including your co-workers similarly situated as you.
:confused: I am a medtech in kentucky and have been cited for leaving premises during my break, and eventually resulted in my not getting one at all. I work at a small hospital and am the only medtech for my entire 12 hour shift. I'm confused as to whether this is against the law. I am paid by the hour, but have a BS in Medical Technology, so I thought that classified me as a professional in an exempt category. I'm considering contacting ky labor board unless someone can tell me whether this is legal or not. Me leaving to get something to eat started a process of bogus write-ups and resulted in my termination.
Thanks for any help!#16; Mon, 23 Jul 2007 00:53:00 GMT
- If you are non-exempt, you should receive the overtime premium. Most commonly this is paid at time and a half.
The billing of your time to a second company is not relevant in determining if you are paid correctly for hours worked. It's ultimately your company's responsibility to make sure that happens.#17; Sat, 18 Nov 2006 10:26:00 GMT
- Thanks so much. Your help is greatly appreciated. I will find out my status and go from there.#18; Sat, 18 Nov 2006 10:57:00 GMT
- Can anyone help me with finding a procedure to file complaint against a public agency (school district) about job misclassification. I am exempt employee, but when I compared my duties with FLSA qlassification , it clearly shows that I shoud be non-exempt. I guees my employee is saving on the overtime (many times I work 60-80 hours/week).
I was told that FLSA does not have jurisdiction over public school districts. However, nobody was able to direct me to a right place.
Thank you. Teresa#19; Sat, 18 Nov 2006 12:14:00 GMT
- Thank you for you answer. No, I am a manager working at the distirct office (no union) My job is grants development so it actulally does not fit in a typical district salary schedule.
I tried to file a complain with Labor Comissioner Office (California) but they told me they do not have jurisdiction over public schools. They suggested to bring the issue to the School Board. It sounds strange to me
I read FLSA and also understand that I am covered by this law. The question is where do I go with my complaint.
Thanks.#20; Sat, 18 Nov 2006 13:36:00 GMT
- Thank you for your quick repsonse.
Some more common questions:
Our paystubs say hourly rate--does this matter?
If someone was out of PTO and was hospitalized for 2 days can they still dock pay?
Should we be reimbersed for improper deductions and if so, how far back?
Thank you so much for your knowledge!#21; Thu, 07 Dec 2006 11:26:00 GMT
- Nope. Most payroll systems require an hourly rate even for exempt employees. This is so that, for example, the cost of a day of vacation can be charged to a different general ledger account (OK, TMI, sorry). :o
They can if the employer provides a "reasonable" sick pay benefit. The DOL has determined that as little as 5 days can be considered "reasonable". If they don't, then they can't dock for illness or injury.
If the employer does go back and reimburse for improper salary deductions, they can avoid some penalties and fines.#22; Thu, 07 Dec 2006 12:03:00 GMT
- Ok heres the near end of this saga. I have spoken to the dept of labor in my area and have been trying to get to the bottom of this with my managers. My managers all are saying something different but after I have questioned so many times they have agreed this "Professional Exempt/Paid Straight Time for OT" which they have the exemption totally wrong (should be administrative)and making improper deductions from salary. Per my manager they are gathering info and will bring it to our attention soon. If they don't then I will file a complaint and then go from there. Other employees are stating that there have been Improper Deductions from their salary as well.
However, I do have another question. The managers have "generously" given us a half day holiday pay on the 22 before Xmas. They advised that we can use our vacation time for the rest of the day for a full day off. Is this accurate if we are salary exempt? Or shouldnt we be paid for a full day for half day and no have to use our vacation time?#23; Thu, 07 Dec 2006 10:14:00 GMT
- Look in the telephone book under Federal Government US Labor Department Wage and Hour Division.#24; Sat, 18 Nov 2006 14:10:00 GMT
- :confused: I am a medtech in kentucky and have been cited for leaving premises during my break, and eventually resulted in my not getting one at all. I work at a small hospital and am the only medtech for my entire 12 hour shift. I'm confused as to whether this is against the law. I am paid by the hour, but have a BS in Medical Technology, so I thought that classified me as a professional in an exempt category. I'm considering contacting ky labor board unless someone can tell me whether this is legal or not. Me leaving to get something to eat started a process of bogus write-ups and resulted in my termination.
Thanks for any help!
Employers are never required to classify an employee as Exempt. Microsoft can classify Bill Gates as Non-Exempt if they wish. If your employer wishes to classify an employee as Exempt, then they are also required to support that classification legally and can be challenged if the employee believes the classification to be incorrect. The reverse is not true.
http://www.dol.gov/esa/regs/complian...irpay/main.htm#25; Mon, 23 Jul 2007 07:17:00 GMT
- We had our meeting and still quite unsure..maybe you all can help. Basically, she keeps insisting we are professional exempt with straight pay overtime. (still incorrect classification) I have asked again if there are any written documents clarifying this special circumstance as they continue to say there are certain stipulations in our hours. (still waiting) We have to document every minute worked. "Sick time comes in one-hour increments. In contrast, floating holidays must be used in whole day (8 hour) or half day (4 hour) increments".
I have never heard of this before either and feel like most of the time things are being made up as we go along.
Does this make sense and if so, is this ok for salary exempt employees?
On a good note..she did quickly add in there .."if someone feels they have been shortchanged in pay let me know"
The pay will be added to some who was improperly deducted but she didn't go into great detail.
I am still feeling like I am treated hourly. I get 2 15 min breaks and an hour lunch and my time is closly monitored. Not that I need monitoring but I want to feel trusted and I don't.
Any insight?#26; Thu, 14 Dec 2006 06:27:00 GMT
- Thanks for the reply--I understand what your saying.
So how do I know if I am properly exempt or non-exempt? Is there a policy I should ask for? My agreement states salary basis--should I be exempt?
Plus the sick time coming in one hour increments has thrown me off.
Is this ok?
One more annoying question: When I applied for this position, the advertisement stated an hourly rate and each interview stated hourly..then I was told your making $14 an hour but your professional exempt...then get my agreement and it states a weekly salary basis.
Should I be concerned, or is this normal?
Another employee was never told professional exempt and was simply told hourly, nothing else. But all of us are paid the same.
Your take?#27; Thu, 14 Dec 2006 09:58:00 GMT
- This thread has been hijacked not once but twice. medtechmomma,tgoleb you both understand you piggybacked bna51901.
JoeC#28; Mon, 23 Jul 2007 08:33:00 GMT
- Salary is merely a pay method. What matters is exempt vs. non-exempt.
If you are exempt, it's always ok to pay more than your pre-defined salary but it's not required under law. If you are non-exempt, the overtime premium should be paid on top of your salary.#29; Sat, 18 Nov 2006 10:50:00 GMT
- Is it still ok to be paid salary then if worked overtime to get paid hourly?#30; Sat, 18 Nov 2006 10:47:00 GMT
- No, it is perfectly legal to require exempt employees to use paid time off to substitute for a partial day absence. Now, if you didn't have any paid time off to use and they paid you for only half a day, THAT would be a violation of the "salary basis" requirement for exempt employees. But the FLSA doesn't care what "bucket" the salary comes from.#31; Thu, 07 Dec 2006 10:26:00 GMT
- Regarding the sick time...what if the employee started middle of the year or late in the year and only recvd 2 sick days as the employer stated it was pro-rated for the year. Would that be considered "reasonable"? Basically, the employee had 4 days off, 2 days PTO and 2 unpaid and exhausted all other PTO
Also, how likley would it be (that since I have been investigating this for 2 months) that I would get terminated from my position?
Because I read on the DOL that the manager is held accountable for improper deductions. I have done nothing wrong but I am afraid they may find something to terminate me since I have been questioning this issue. I just want to make things right and legal.
Again, thank you so much for your insight!#32; Thu, 07 Dec 2006 16:41:00 GMT
- So I spoke with my immediate manager again and her boss (the HR Manager and one of the corporate managers) is investigating this as she is unsure about it as well....doesn't sound very 'together'! Anyway, my boss says she is positive we are definitly not paid on a salary basis. I did oppose this as my Employment Agreement states those exact words. She states we may be something of an hourly exempt kind of structure. I don't believe there is such a thing, is there? My boss states we are paid only for hours we work including overtime. (She thinks of it as a perk) In the beginning they stated "professional exempt" but now they aren't really sure. I am waiting for something in writing from them. Basically, it sounds like we are hourly without the premium overtime. Suggestions/Comments...Please!!!#33; Sat, 02 Dec 2006 10:17:00 GMT
- It is impossible for the employer to classify you as an exempt employee. To be exempt under 13(a)1 29 CFR 541, (executive, administrative, or professional) you MUST be paid on a salary basis every single week. As you indicated your are paid $14 per hour, this single action on part of your employer makes you a non-exempt employee. The employer is correct in not paying you for absences. He is required to pay for actual hours worked. However in workweek in which you work over 40 hours, employer is INCORRECT, he must pay you the extra time premium overtime pay. As an hourly paid employees your are correct in that fluctuation workweek is not applicable in your case, you must be paid on s salary basis, for the fluctuating workweek to apply. You are due overtime when you worked over 40 hours in a workweek, including your co-workers similarly situated as you.#34; Sat, 18 Nov 2006 11:10:00 GMT