Salaried Employees

3528101

I would like your legal opinion to the following situation:

There are 3 salaried employees and the rest are hourly at our business. The business closes down from 12/18/04 thru 1/2/05 (reopens 1/3/05). The hourly employees collect unemployment or use unused vacation time. One salaried worker has to work during the lay off. One only comes in if there is a need to plow snow (basically for employee that has to work). Also, this year this employee will not return to work until 1/10/05 (this is not vacation time and will be paid for it). The 3rd salaried employee doesn't come in at all during the layoff period.

The two salaried workers that do not work during the layoff sometimes work over 40 hours a week during the busy time. Management may sometimes give them time off called comp time. Even if the salaried worker that works during the lay off had a lot of overtime hours, that person would still have to work during the layoff. This same person only has 1 week of vacation and if takes extra time has it deducted from salary.

One other question is that all 3 salaried workers have to punch at time clock in the AM and PM when leaving. Only one has to clock in and out at lunch (the one who has to work the layoff period). Management also expects salaried workers to use personal/sick time accrued to cover for time missed (less that 2 hours).

I's appreciate any feed back that you would have.

By the way, Nov 15 - March 30 is our slow time.

mwild31

Hi 3528101 & welcome to the forum. The lawyers attached to this site don't participate much, but the rest of us HR types do & all we can offer is advice - the non-legal kind. That said, here's my question to you - are the salaried folks you mention in your post "exempt" or "non-exempt"? Too often employers make the mistake of thinking that as soon as someone goes to "salary" they are therefore "exempt".

3528101

I am not always sure what is considered "exempt" or "non-exempt". Two of the salaried employees manage people underneath them. The third is the controller and doesn't really manage anyone but is in charge of certain functions. For example, is required to make sure payroll info is correct but normally only actually does it only when the payroll person is gone. All 3 are over the pay for FLSA.

The question that I have is, isn't legal/fair to make the one salaried person work during the shut down when the other two are not required to.

mwild31

[font size="1" color="#FF0000"]LAST EDITED ON 12-03-04 AT 03:34PM (CST)[/font][br][br]I think I drank "fuzzy" water today. 3528101, you don't know what's considered "exempt" and "non-exempt", but you know enough about the FLSA to know the salary minimums? I question whether or not the “salary” folks are really exempt (see this link for information [url]http://www.dol.gov/dol/compliance/comp-flsa.htm[/url]) and I believe, based on your questions here, you do as well. If they are truly exempt, then yes, some of them may have to work and others may not – the business decides & an exempt person can either get with the program and do the job or quit – it’s their prerogative. An exempt person can be made to clock in an out, but as a “best practice” I wouldn’t do it unless the business reason is really clear. Our Operations Manager keeps a time ticket, but we do it because we want to clock his time against work orders & charge the customer accordingly or track our administrative costs. There could be other reasons, but they really should be known to all involved & communicated accordingly (not a legal requirement though). I don’t really understand the “comp” time aspect of this situation in regards to the exempts. As an exempt, you either have work to do that week or not. Sometimes you work more than 40 hours a week & other times you don’t – it all depends on the workload and the business. As an exempt, I don’t know when was the last time I worked only 40 hours in one week, but then again – I don’t track my hours – I have a job to do & an expectation by my boss to be here & available for our employees. 3528101, if you are one of the “salary” folks involved here & you feel as though your employer is abusing you financially – maybe you should contact an attorney. Usually the first consultation is free.

marc

Also, welcome.

You have given us a scenario, but I don't see any questions.

I will say it is OK to punch a time clock, even if you are exempt. That would be OK to track attendance, but not OK to use as a basis for pay for exempt personnel. Doing so can put their exempt status at risk.

As to working exempt personnel more than 40 hours, that is the norm - at least most places I have been. You can work exempt personnel 8 days a week, 25 hours a day without paying them extra.

Giving Comp time (compensating time off) is a problem but there are some exceptions, such as EEs of certain public entities. Otherwise, I think it is supposed to only happen within the pay period.

That does not mean you cannot pay people later in the year - perhaps you are giving them more vacation pay or bonuses of some sort.

I would not worry too much about the disparity in treatment of the salaried people you described - unless you are treating them differently because of some protected status, such as race, veteran status, sexual orientation, etc.

None of these opinions are legal or illegal - just mine and like Mwild, I am not a lawyer with an professional liability insurance policy you can look to if you act on this information and suffer some sort of a loss.

So if I missed any of the real questions you have, post again with a specific question and I will take another shot.

Don D

Your question seems to be, "Is it fair?" Well, maybe not. It's legal, it's frequently done, it's common, it's often a good decision and sometimes a bad one. But, the person to whom it applies may consider it unfair. On any given day, we could survey our employees and find a hundred or more things considered unfair.

NM _Tom

Just a hundred...??? Can I come work with you?

Shadowfax

The fact that one of your 'salaried' people is plowing snow raises a significant suspicion that he is NOT exempt.