Are union members still exempt/non-exempt?
HCA
72 Posts
We have an employee who clearly falls in the exempt status (no question on his supervisory level). A department head denied his request for 1.5 hours of overtime because he is exempt. We now have a grievance from the bargaining unit saying that he is a union member and is entitled to be paid under the union contract regardless of his status. "The union's position is that whether he is exempt or non-exempt under FLSA is irrelevant. The FLSA sets minimum criteria for overtime and wages for employers, and does not prevent parties from entering into a collective bargaining agreement that allows overtime for exempt staff."
IS THIS TRUE?? The exempt employee is a member of the bargaining unit, but we don't necessarily believe he should be (we fought that battle before and asked them to place him in a difference unit because he supervises other members of the bargaining unit - they didn't). We have always treated him as an exempt employee and the union agreement doesn't differential between employees and supervisors.
Do we have to pay him the 1.5 hours of overtime??
IS THIS TRUE?? The exempt employee is a member of the bargaining unit, but we don't necessarily believe he should be (we fought that battle before and asked them to place him in a difference unit because he supervises other members of the bargaining unit - they didn't). We have always treated him as an exempt employee and the union agreement doesn't differential between employees and supervisors.
Do we have to pay him the 1.5 hours of overtime??
Comments
I just found the recognition clause and it says that he is included. Not specifically, but it says all "deputies" and he is a "deputy". It's just that as deputy, he is the Jail Administrator.
What has the practice, under the contract, been for represented exempts in regard to paying them overtime?
Is there a "management's rights" article and what does that say?
Being a represented emplyee or not is not a function in deciding whether overtime is payble to an exempt. If your contract calls for it, then you pay it.
FLSA/DOL Opinion doesn't prohibit an employer from paying additional compensation to an exempt who works more hours than the weekly salary is intended to cover -- in short, the employer is not prohibited from paying overtime, even at an hourly rate at time-and-a-half; it won't jeopardize the exempt status as long as such payments are not a rouse to get around the prohibitions against improper docking.
Regarding his being represented by the contract, if he is a supervisor is he involved in ruling on contract provisions in a grievance? In other words, does he sueprvisoe employees who are also covered by this contract in the same "bargaining unit" and is he deciding grievances on the contract language (e.g., whether the company violated a certain provison or not in taking an action against an employee)?
The mgmt clause says that we have the right to manage, control and direct business in all areas including but not limited to: direct employees; hire, promote, transfer, assign and retain employees; relieve employees from duties; maintain operations; Determine methods, means, job classifications, and personnel by which we operate; take whatever actions may be necessary to carry out our mission; and establish methods and processed by which work is performed.
He does supervise other employees who are members of the bargaining unit. He would discipline those other employees, but would not be part of the grievance process if he grieved. The grievance deciders are him supervisors.
>Being a represented emplyee or not is not a
>function in deciding whether overtime is payble
>to an exempt. If your contract calls for it,
>then you pay it.
>
I disagree that being represented by the contract is not an element in the decision, if I understand your statement correctly. Rather I think his being a member of the bargaining unit is precisely the fact that tips the scales and grants him rights to overtime, regardless of your assignment of FLSA status. If he is a member of the bargaining unit and the contract requires that members of that body are paid overtime, you have no options.
In right to work states, as this one, it would not matter if he were not even a member of the union. He is still represented as a member of the bargaining unit if he is within the group covered by the contract.
Don't forget that you have a right, as the employer, to file a grievance, have it responded to and elevated and ultimately settled by an arbitrator if you are adamant that he is not entitled to be covered by the contract. But it sounds as if he is.
Whether a position is exempt or non-exempt is a function of FLSA unless a cba provision makes the position non-exempt (even if it could be exempt under FLSA criteria).
In this case, while HCA said that the company hasn't paid overtime, there was no mention on whether the employer actually treated th eemplyee as exempt or non-exempt -- in short, were absences docked based upon hours missed or was pay issued in line with the requirements of 29CFR541.118(a).