45 Hour Exempt Workweek - Legal?

Mercy · January 2004

Our Exempt staff was hired with the understanding their normal workweek is 45 hours. They are paid their straight salary by FLSA law - regardless of hours worked under or over. (We do pay comp time for occasional special projects). It is my understanding the company can set the workweek.

I have searched to validate this policy. Can you help me?

Hot issue at the moment.

Thanks!

marc · January 2004

Exempt staff can be worked 8 days a week, 30 hours per day.

I had a job in a Colorado Ski Resort in an administrative capacity. All exempt personnel were expected to work 6 days a week during the ski season. It was in the handbook and part of the deal. During the shoulder seasons, lots of lattitude allowed because of the seasonal commitments, but even that is not necessary.

As an exempt employee, management level, I have always just expected that a 45 to 50 hour week was going to happen. Often less, and sometimes more - it just comes with the territory.

KathiHR · January 2004

This would be a good situation to review with your employment attorney. Its true that exempt employees can be worked more than 40 hours, but where it gets sticky is in determining whether that position is, indeed, exempt. They must meet the criteria for either "exempt executive", "exempt administrative", or "exempt professional". The criteria of "regularly exercises discretonary powers" and "exercises discretion and independent judgment" is where a company can get into trouble mis-classifying. I recently changed some positions to non-exempt that we used to think of as exempt. I read cases of how the courts in my state were applying the criteria & I just didn't think that the exempt status would fly. (My CEO is one of those that thinks a salary makes someone exempt.)

Our attorney told us that he just represented a group of loan officers in a class action against a nation wide bank that classified them as exempt & worked them 50-60 hours/wk. The bank lost & had to settle up on all their back overtime pay. Its worth having an attorney review those positions if you have any doubts.

Kathi

marc · January 2004

KathiHR makes an excellent point. Just paying a salary and saying they are exempt does not make it so.

Don D · January 2004

The other caution would be to make certain these employees are not being treated as non-exempt in every situation: Set work hours with no flexibility, docking pay for not working certain number of hours, hourly pay rate, paying based on number of hours turned in on time card or time sheet.

Gary Jiles · January 2004

You can have normal work hours that you expect your employees to adhere to. However, you cannot dock their pay if they are late to work or if they miss less than a full day of work, except for FMLA reasons.

Gary D. Jiles
Editor, Arkansas Employment Law Letter
[email]gjiles@jlj.com[/email]

This post cannot be relied on or construed as legal advice. You should contact your attorney of choice for legal advice or for legal assistance.

>Our Exempt staff was hired with the
>understanding their normal workweek is 45 hours.
> They are paid their straight salary by FLSA law
>- regardless of hours worked under or over. (We
>do pay comp time for occasional special
>projects). It is my understanding the company
>can set the workweek.
>
>I have searched to validate this policy. Can
>you help me?
>
>Hot issue at the moment.
>
>Thanks!

Durango64 · January 2004

This very question came up at an HR seminar that I recently attended. In addition to all the aforementioned criteria for classifying an employee as exempt, one other thing was mentioned: if you mention number of hours to be worked in any way, shape or form, you have just changed the classification to non-exempt.

The speaker, an HR pro himself, stated that if this salaried person can complete his/her assigned work and assure that his/her dept is running as it should, and they can do it all in 25 hours a week, there's nothing you can do about it. 25 hours is an exaggeration obviously, or they lose their health benefits here.

We used to require exempts to work 45 - 60 hours per week. Now we state they are required to work during 'normal business hours'. Our business is such that their presence is usually required while everyone else is here also. Flex hours will not work in our company.

Legal counsel sounds like a good idea no matter what. Every state is different.

Don D · January 2004

one other thing was
>mentioned: if you mention number of hours to be
>worked in any way, shape or form, you have just
>changed the classification to non-exempt.
>
That's quite a stretch Durango. Mentioning or even requiring presence during set time periods doesn't destroy the exemption. In your scenario it's OK to tell someone they must be here during normal business hours, but if I'm a new exempt employee and ask you what are those normal business hours, you can't tell me. (Don't forget; your moderator said 'any way, shape or form). We tell our engineers and other office exempts that their normal business hours are 7:30-4:30 with a lunch break. But, we certainly don't monitor that to the absurd or penalize for non-worked hours.

Durango64 · January 2004

I thought it was 'quite a stretch' myself when I heard it and flags of doubt were raised in my mind before I left the seminar. Our normal bz hours are stated as 8-5 with a lunch break, similar to yours. We don't penalize for non-worked hours nor do I think we do anything absurd. (p.s.) HR was not my chosen field, it just sort of came with the job. xflash ha

LarryC · January 2004

Along with the other posts, let me add that formal tracking of accumulating and usage of "comp time" may jeopardize the exempt status. A DOL audit may conclude that the employee is being paid by the hour.

marc · January 2004

With all due respect to those who have stated that paying exempts by the hour jeopardizes exempt status, I disagree. Exempts wages can be computed in a number of ways, including hourly. Right now, there is a short and long test to determine exempt/non-exempt status, but if you have made a proper determination that an EE is exempt, then paying them hourly should not jeopardize that status.

Pork · January 2004

"WE DO PAY COMP TIME FOR OCCASIONAL SPECIAL PROJECTS"..... I would be concerned about paying anything for comp time, now if you mean you allow an EXEMPT to have personal time off hour for hour worked on special projects, I'm good to go with that statement.

Like all of the other posters EXEMPTS VS NON-EXEMPTS get companies in to trouble because the senior leadership and owners don't know the law and edict how things are done and before you know it the HR is fired for letting something so stupid happen. Of course, walk softly with the facts of the law because you could be walking on the senior leadership and owners EGO's.MAY WE ALL HAVE A BLESSED HR WEEK WITH LOTS OF PLUSES FOR US ALL!

PORK

Mercy · January 2004

This was my first posting on the Employers' Forum.
Great response!

Comp time not paid - hour for hour off.

Appreciate each of you!

45 Hour Exempt Workweek - Legal?

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