What laws are there on how many days/hours you can work an exempt employee?
freya81
1 Post
I am an exempt employee in Hawaii. Trying to find the laws about this are insanely tedious. I manage newspaper carriers and when we terminate a carrier I am often required to deliver their routes. So, I may work a full week during days at the office, then have a carrier suddenly "drop" a route, and have to switch to nights and work 7days a week, night shifts, delivering their routes without breaks or lunches. (We have a time limit on delivery). At one point I had to work a little over a month and an half without a day off, including at least one holiday. The first night I worked 16 hours, the average of the rest of the nights I worked 7.5 hours (no breaks or lunches).
Is there a legal limit? Can my employer actually work me 24 hours a day/365 days a year? Or, do they "Owe" me paid days off in such circumstances. I'm very curious. Because I think it's unbelievably unfair that they can dock me a day as a salaried, exempt employee but I can't demand a paid day off when I don't get a day off for a month and an half.
Please let me know if you know of any laws or regulations on this. My company has never given me any policies or handbooks as an exempt employee. I also have no job description.
Thank you.
Comments
Employers may require exempt employees to work any amount of specific hours, for example from 8 a.m. to 6 p.m. If an employee violates this type of policy, the employer may not dock the employee's pay but may use other forms of discipline. An employer can require an exempt employee to work a 50 or 60 hour week if they want - they won't keep many employees this way, but they can do it.
Why keep track of exempt employees hours? Most employers don't. This is fine as long as the employer is absolutely sure the workers are exempt. If it is later determined that an employee was nonexempt, that employee might make a claim for overtime pay. If there are no records of the employee's work hours, the employer will have great difficulty countering the employee's claim as to the number of hours he or she worked. Time sheets for exempt employees should record sick days, floating holidays, vacation time, jury duty, bereavement, and other absences. However, exempt employees may not be docked pay because of a variation in the quantity of work performed and recorded.
There is another issue here to consider. You're delivering papers.
The concurrent performance of exempt and nonexempt work does not disqualify an employee from the executive exemption. The regulations allow concurrent duties because, generally, exempt executives make the decision regarding when to perform nonexempt duties and remain responsible for the success or failure of business operations under their management while performing the nonexempt work. In contrast, the nonexempt employee generally is directed by a supervisor to perform the exempt work or performs the exempt work for defined time periods. For example, an exempt store manager will sweep the floor when he or she desires or needs to do so. A nonexempt janitorial employee, on the other hand, will sweep the floor at the order of the manager.
But, exempt salaried employees often work additional hours for their employer doing nonexempt work (such as deivering papers). If this work is paid on an hourly basis, the employee may no longer be exempt and overtime will be owed including overtime for hours over 40 per week that the employee works in his or her formerly exempt job. This problem can be avoided by paying the employee a fixed salary for the second job that does not vary from week to week based on the number of hours worked. In addition, the hours worked in the second job must not be so large that the employee's "primary duty" is no longer work that qualified for the professional, administrative, or executive exemptions.
I agree with everything RuthG has said about this matter on the Federal level.
There may be a state component. For instance, I know of at least one state statute that prohibits working retail workers more than 6 calendar days in a row. I'm not an attorney and I don't even play one on TV, but here is one item I found on another HR professional website related to Hawaii state law: 387-3 (f) No employer shall employ any employee in split shifts unless all of the shifts within a period of twenty-four hours fall within a period of fourteen consecutive hours, except in case of extraordinary emergency. As far as I can tell, there is no meal or break law in Hawaii.
It's hard to say without more information, but I would be concerned about your hours leading me to question what your "primary duty" really was. Is it doing whatever it is that makes you an exempt employee or is it covering the non-exempt duties of your subordinates for long periods of time? Using exempt employees to do non-exempt duties covering for absent employees and open positions even for extended periods is much easier for employers to get away with now than it used to be, so I doubt you have anything there.
Who is responsible for staffing carriers for you? If it's you, then you are going to have a heck of a time digging out of this hole if you are spending all your time delivering papers. If it's not you, perhaps you should direct some energy at getting them to staff open positions faster. Speaking of staffing, are there any programs in place to retain carriers? I never delivered papers, so I really don't know anything about what's standard for the job and industry, but you are having problems that are common to work places in general.
Unfortunately the Hawaii maximum hours law does not apply to exempt employees, but I agree that what your primary duty really is an issue.
According to the BLR web site an exempt administrative, executive, professional, computer, or outside sales employee must have as his or her primary duty work that meets the first requirement of the standard duties test for the particular exemption. A determination of whether an employee passes the primary duty test is based on all the facts in a particular case. The amount of time spent in the performance of the required duties is a key factor.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
In the ordinary case, “primary duty” means over 50 percent of the employee’s time. However, time alone is not the only test. An employee who does not spend over 50 percent of his or her time in managerial duties might still have management as his or her primary duty if other pertinent factors are present. These include:
• The relative importance of the executive duties as compared with other types of duties
• The amount of time spent performing exempt work
• His or her relative freedom from supervision
• The fact that his or her salary is greater than the wages paid to other employees for the kind of nonexempt work performed by the executive
It seems to me that at some point when the time spent on non-exempt work far exceeds the time spent on exempt work that an employee is no longer exempt and is owed overtime.