New administration treating exempt as non-exempt
sobekneferu
22 Posts
I work for a non-profit, the board of directors of which recently fired the Executive Director (who actually was a good executive director - they just didn't like her). They put an interim ED in, a consulting contractor who yesterday decided to change our office hours (OK, I'm not sure an interim should be making changes like that, but what do I know), and then insisted that all exempt employees must now account for 8 hours a day, and must take a one-hour lunch. I contend that this is treating an exempt employee like a non-exempt employee, and will open us up to claims of overtime from those exempt employees. She also told a non-exempt employee who doesn't like taking lunch that if she ended up working through lunch (thus working a nine-hour day) she could go home early on Friday to make up for it "but it's not comp time, OK?" I'm itching to call our local department of labor about this, as I am planning my get-away soon, but I'm wondering if I am over-reacting or mis-interpreting the situation. Any thoughts?
Comments
An employer may hold salaried exempts to reporting to work on time, not leaving early without permission, etc. In deciding an exempt status dispute, the issue for DOL isn't so much the accountability of an exempts schedule but whether or not the employer actually pays the base salary on the number of hours the salaried exempt puts in. FLSA and DOL do allow employer for several valid reasons, including biling purposes and controlling tardiness and disciplining them, to monitor the salaried exempt's employee's time but NOT base pay on that time -- absent intermittent FLSA or public sector exempt status (although DOL does permit the salaried exempt to be paid "overtime" even on an hourly basis).
But having said that, I should say the more an employer does things to track an exempt employee's actual work time, if there should ever be a dispute, the more likely it is that the DOL may find the employee was actually treated as a non-exempt.
And there is no prohibition against an employer requiring a salaried exempt to take a meal period. In California, for example, although the issue isn't absolutely clear, the Labor Commssioner's enforcement arm (similar to US DOL Wage and Hour Division) does hold open the possibility that state law may in fact require employers to provide a meal period for exempts.
"Comp time" for non-exempts as "payment" for overtime is prohibited in the private sector. But that doesn't mean in states that just follow the FLSA overtime of 40 hours states, that an employer is prohibited from adjusting the employee's work schedule DURING the work week so that FLSA overtime isn't worked. Thus, if the employee is allowd to work through meal period , which is paid, the employer may of course adjust the work schedule by ending the sift an hour earlier on that day or any day during the work week. In fact, curtailing work schedule during the work week is a common way of avoiding FLSA overtime.
For example the non-exempt employee works 10 hours on Monday, instead of the regualr 8 hours. So on Tuesday, the employer only has the employee work 6 hours, and then 8 hours each of the follwong work days, Wednesday, Thursday and Friday; thus only 40 hours are worked. That's permissible under FLSA.
I think you are over-reactng at this point, at least under FLSA. But certainly, any changes that don't make sense to employees should be discussed with management -- it will lead to more effective compliance and cooperation and cut down on the possibility of unwarranted complaints to DOL or state labor agencies.
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James Sokolowski
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