Labor Board experts - need advice!

[TR Custom Parts]

As many of you know my Turbo Regal Custom Parts job is a part time venture. My full time job has been as a Maintenance Director for a large nursing home for the past 13 years.

When initially hired my position was hourly as I am a hands on supervisor. Years later the company outsourced the department to a contracted service and I became one of their employees on a salary. After 1 1/2 years of this the contracted service left and I became a company employee again.

The company had an audit by the labor board and numerous employees were called into a conference with the labor board person who was doing the audit. After giving her the description of my job duties she determined that I qualified as an hourly worker and was intitled to any overtime I had worked in the past 1 1/2. I declined to pursue that route so as not to rock the boat and possibly get fired afterwards but told them it would be fine if they just put me back to the hourly position which they did.

It has been that way for the past 5 or so years. At this point I was supervising three departments, Maintenance, Housekeeping AND Laundry and still was a hands on employee doing the majority of the maintenance work.

A year ago they took the other two departments and once again contracted them out and I stayed on as only the Maintenance Director which was fine with me. Now in 2003 they got rid of the contracted company once again. Guess who is now in charge? To make matters worse I have just been informed that I am now a SALARIED employee. What exactly constitutes a salaried vs an hourly employee anyway? When the labor board was here I thought it was a done deal. Yes, I supervise and hire/fire people but I also am doing hands on work more than 50% of the time. If I go to the labor board they will know it is me and probably make my life even more miserable so I quit. Guess it is time for a career change.

 

[phil conrad]

Mark, I honestly do not know the "formula" for salary vs. hourly. To me it sounds like you work for a bunch of sharks. I do not know what the job situation is there but I would seriously look around. Good luck.

 

[TR Custom Parts]

Sharks is not quite the word I use for them! The job market pretty much sucks around here for my type of position. Don't get me wrong, they pay me quite well but I am about at the end of my rope. Guess they are expecting me to work 60 hour weeks now at the same pay. Have already contacted the labor board and hopefully that will not bring retaliation from the them but who knows.

 

[EFFNQWKWE4]

I don't think that there is any precedent for being a salaried or hourly employee, it's just up to you and your employer. I am a salaried manager for Outback Steakhouse. My job is ALL hands on get dirty labor (well...99% of it anyway). I do write schedules, hire and fire, attend management meetings, and the like, but most of what I do is working with the food. When I was an hourly cook, I was working about 55 hrs a week. As a salaried Kitchen Manager, I now work roughly 60 to 70 hrs a week. When my title changed and I went on salary, My boss and I sat down and worked out a salary that was no less than what I made with all of my overtime the year prior. Now, the kicker is this- if my store does better, I get a better bonus and make MORE money than I did with all the overtime- thus the desire to work more hours to make things perfect! As far as your situation goes, Labor laws vary greatly from state to state. Your best bet is to contact an attourney that specializes in just labor laws and see what he/she says. HTH

 

[Chuck Leeper]

hrly vs "mgmt"

Mark, the atty advice is a good suggestion!!
1. If they fire you for doing what's right, then you can own the facility!!
2. There are distinctions drawn, using what's known as hourly paid positions and "exempt" employee status.
Exempt is another way for them to work your ass off and not pay OT. On the other hand, "exempt" employees usually have some added perks and "bennies" that hrly folks don't.
3. IF you are paid hourly, as in a determined amt times the hours you put in, that's obviously an "hourly" job. In most states,IF that is the way you are paid, you HAVE to be paid overtime..My bud that has a hardware store had to do that for his mechanic.. The mech. worked over 40 hrs on a regular basis and the took the time off against his accumulated overtime hrs. He had a dispute, got fired and went to the labor commis. He got all his backpay for the overtime he worked..
Bottom line!! GET A LAWYER!!

 

[Little6pack]

If you stay on as a Hourly employee you will be due overtime over your 40 hours.

If you go salary you need to figure out a price you are worth to cover any extra hours you work that they won't pay for once they have you as salaried.

Could you take your current trade over into working at a hospital or Big hotel like FOXWOODS instead of nursing home?

 

[dhauser]

Mark, this is what I do for a living. I am a Compensation Administrator for Sprint, and I deal with the whole Hourly vs Salaried issue all the time. One of my duties is to examine jobs to determine if they qualify as "exempt" from overtime, or "nonexempt," meaning the job is eligible to be paid for overtime. I've personally assisted in reclassifying some 500 people over the last few years in which Sprint ended up paying over $2 million in back OT. This stuff happens all the time.

The governing law here is the FLSA, or Fair Labor Standards Act. It is a federal law, not a state law, so state laws are superceded in this case.

I am oversimplifying this antiquated and incredibly confusing law, but essentially, the difference between "exempt" and nonexempt has to do with:

1) How much true "impact" do the decisions you make have on the company's direct bottom line?
2) Do you routinely use independent discretion and judgment to solve problems that don't have "standard" answers or aren't written down in a manual somewhere? Are these decisions made on your own, and are you solely responsible for their consequences, or do you recommend them and someone else ultimately makes the decision?
3) Does your job and the things you do have substantial and direct FINANCIAL impact on the company? Can it be quantified?
4) And probably the most telling factor---how much of the work of your subordinates do you do yourself?

You stated that you do the same work as the people you supervise more than 50% of the time. Not only that, but what you do is often considered under the eyes of the law as a trade or vocation, and not generally considered administrative in nature. These factors strongly point to the fact that you should be an hourly paid employee, eligible for overtime.

There are laws designed to protect you from retaliation by a company for filing a claim with the US Dept of Labor. Ask them about your recourse should you be so threatened. In any event, you made a mistake in foregoing your previous back OT pay. In fact, the company cannot legally NOT pay you if your job was determined to be nonexempt. You should include all of that in your complaint, but depending on how long ago it was, you may or may not be in a good position to recover it. I suspect you would be, though.

Bottom line is, unless there is a specific exemption for "maintenance-type workers" (and there very well could be, because the FLSA is chock full of exceptions to the rule), you are due a whole bunch of back OT if you worked the hours.

Here at Sprint, if there aren't explicit records kept of what OT hours are worked, we rely on the employee to give us their best estimate, and if it's reasonable, we pay it. Litigation for this sort of thing is very expensive, and most companies find it cheaper just to pay the back OT than to fight it. I've talked with our attorney's many a time about all this, so I feel confident about what I'm telling you. If you do ultimately get to determine your "estimate" of how much OT you worked, and there aren't good records to confirm or deny those hours, be generous with what you claim, but don't be stupid. There's a lot of "slack" in there when record-keeping is poor.

You are in the driver's seat, bud. Give me an email if you want to talk more about it on the phone. If you havent' already checked out the DOL's website, you should do so.

Good luck.
Doug

 

[TR Custom Parts]

Doug, you are just the expert I was looking for! I sent an email to the DOL about my situation and this is their answer to me.

We would not say you are hourly but non exempt and they can still pay the salary but would have to pay overtime if you worked it. They should analyze your pay structure an arrive at a salary and number of hours that when you work overtime would add up to what they figure you should be paid.

They also said that I would not recieve any protection from the DOL if the company decided to get rid of me if I file a complaint with them.

Here's the answers to Doug's questions.

1) How much true "impact" do the decisions you make have on the company's direct bottom line? NONE!

2) Do you routinely use independent discretion and judgment to solve problems that don't have "standard" answers or aren't written down in a manual somewhere? Are these decisions made on your own, and are you solely responsible for their consequences, or do you recommend them and someone else ultimately makes the decision? I recommend them and the administrator has the final say.


3) Does your job and the things you do have substantial and direct FINANCIAL impact on the company? Can it be quantified?

NO
4) And probably the most telling factor---how much of the work of your subordinates do you do yourself? I AM IN CHARGE OF MAINTENANCE FOR A 54,000 SQ FT BUILDING WITH 120 PATIENTS WITH AN ASSISTANT WHO ONLY WORKS 20 HRS A WEEK! HOW MUCH DO YOU THINK I DO? PLUS I HAVE TO NOW SUPERVISE THE HOUSEKEEPING AND LAUNDRY DEPTS!

PS, just to clarify, there is no say on my part how much the "salary" will be. They will still be paying me the same amount weekly that I was making as an hourly employee, no increase for taking on the two additional depts and now they can make me work as much as they want. I am sort of stuck as I just bought a house as most of you know and haven't even made the first mortgage payment yet! If I rock the boat I know they will give me the boot. It's just so frustrating as I have been thru this before with different owners of the place where I work. I know I should be thankful that I have a job that pays pretty well but it is hard to be upbeat about this latest turn of events.

 

[Two Lane]

SERVICEMASTER

Hmmm...

Friend of mine was in an IDENTICAL situation with ServiceMaster.

Got a retro-settlement (after being dismissed ) for uncompensated OT. Said it was like getting tipped by your rapist.

More & more Corporations have revolving-door field mgmt as a strategy to hold labor costs to a minimum.
_______________________________________________

Hope everything improves soon!

 

[TR Custom Parts]

I WAS hourly so there is no big buildup of OT that they would owe me. There probably will be now though. I am determined to only put in the 40 hours I usually always did. Got to keep the part time business going, have things to bring my son to after school, etc., etc.

 

[strikeeagle]

Doug,

Can a NE employee decline to become E? What exactly is the procedure for being "annointed"? It seems to me some guys in my company have declined to become E, and over their careers have benefitted from the resulting OT...

 

[dhauser]

Mark, if you aren't prepared for the heat a complaint might bring, don't rock the boat. But I will tell you, the gubbimint doesn't take these complaints lightly. If you decide to press on, file a formal and complete complaint, fill out all their stupid forms, and they will hear your case. Don't let some slack-jawed donut crammer turn you off from filing if that is what you want to do.

If they retaliate against you, document, document, document! Then, get yourself a lawyer and don't worry about the rest, because you will win--almost a guarantee, because you have evidence, you have the fact your job was once classified as nonexempt and the proof that it is is clear, and juries and judges almost ALWAYS ALWAYS find in favor of the worker unless the lawsuit is completely without merit. If you find another job, you can still sue them even after you've left.

Strikeeagle, contrary to what you might have heard, an employee has ZERO choice in the matter. If your job is professionally evaluated and it's determined to be nonexempt in the eyes of the law, that's the end of the story---start collecting overtime. This is all about following the letter of the law, and the law is (somewhat) clear about what makes someone nonexempt vs exempt.

In the end, I'd MUCH rather be nonexempt and get overtime....The incentive plan we get almost never makes up for the extra hours I put in. Most employees here at Sprint think they are a "plebe" or something if they are nonexempt, but what I tell them is that the only thing it changes is the way you're paid---NOTHING else. But it's a cultural thing. As Sprint, nonexempt = plebe, and that's very hard to undo. Stupid managers!

BTW, if an employee "declines" to become exempt, what it usually means is they are turning down a promotion, so I guess one "could" do that, but the job itself is changing and getting more responsibilities that will make it exempt. Usually, a higher pay range goes with that. Not always, but most times.