Am I Exempt?

[concretejoe]

What is the name of your state? Indiana, but I work in Kentucky.

I don't know if any of you are familiar with the ready mix concrete industry, but I will try to explain my job duties to you. I am a batchman for a ready mix operation in Kentucky. I am paid on a salary bases, but I don't know if I fall under the exempt provisions in the FLSA for overtime pay.

My job basically consists of batching concrete into trucks and then sending them to the jobsites of our customers. I am called a "supervisor" because I am supposed to make sure that the truck drivers are doing any kind of busy work they can find while they are on the yard in between loads, which is very seldom. Most of the time I have to load them for another order as soon as they return from thier last run. I spend the majority, I would say 90%, of my time either loading trucks, taking customer orders or waiting for trucks to return. Occasionaly there are problems with trucks or jobs, then I have to coordinate with either the maintenance or sales departments to get them resolved. I do tell the drivers when, and if, they can take a lunch break as the schedule permits. I also let the drivers know when we are done for the day and they can go home. At the end of the day, I make up the start times for the drivers in the morning according to the next days orders. I do a yards/man hour sheet to be turned in to the main office. Then I lock up and go home.

Everything that I do is dictated from above. I have know discretion(sp?) to make important decisions like, hiring, firing, disciplinary actions, who to sell to, who to buy from etc. I just feel like they are calling me management and paying me salary to keep from paying overtime. I work consistently 60 hours per week, but my salary is for 40 hours, according to my check.
What are the qualifications for being exempt? And, in your opinion, do I meet them?

 

[concretejoe]

extra info.

I'm sorry but there is some other information that I neglected to mention in my last post. I started in this position in January. At that time I was still being paid on an hourly bases w/overtime. I had just changed from being a driver. They kept me on an hourly bases until April. The reason they let me go that long without switching me to salary was because the drivers were talking about unionizing. There had already been a vote, and the union was voted in a year earlier. At the time though, nothing had come of it. No steward was elected, and just about all the drivers that were there at the time of the vote were gone by then. Now fast forward, some of the drivers were discussing the union in the drivers room. One of the owners was listening in behind a door. He proceeded to call the drivers into his office and talk to them about going union. Some of them contacted me later in the evening at home. They wanted to know what was up and if anyone was in danger of losing thier job. I told them that they couldn't fire them for talking union, and actually the owner was operating in a dangerous gray area by calling them in his office. I also advised them that they could vote the union out if they wanted to. My boss told me that I would not be put on salary, and "officially" recognized as management, until after the union thing was resolved. They wanted me to find out who was going to vote for or against, and wether or not they should push for a vote. Also they were counting on a "no" vote from me if it came down to one vote. I believe that these things were wrong, and, quite possibly, illegal. I also feel that my promotion could be considered as a pay off for helping to get rid of the union. Even though the decision to move me into the dispatch office was made before this all happened. I wonder if the fact that I was paid overtime at one time, for doing the same work, has any bearing on my situation now.

 

[Beth3]

As to whether you're exempt or not, in my opinion your position does not qualify but this can be a tough call to make, as the FLSA is somewhat vague and your position is borderline. I suggest you contact your State's Department of Labor and discuss this further.

As to your second post, you haven't described anything ILLEGAL. The boss talking to employees about their stance toward unionization pushes the envelope and may give rise for someone to file a complaint with the NLRB for unfair labor practices depending on what was said but that's about it. Keeping you hourly during this time didn't violate any laws either. If a vote had come about, I can promise you every position (regardless of title) would have been scruitinized by management and the organizing union to see if they appropriately belonged in the bargaining unit and had voting rights. If management wants to offer you a reward or promotion for helping get rid of the union, they're free to do so.

 

[concretejoe]

thank you

Thank you for your response. I'm having a hard time deciding what to do. I have already visited the wage & hour people down at the federal courthouse. I am in the process now of logging exactly what it is I do all day. I just haven't had time to go talk with them again. I want to make very sure that I am entitled to overtime before I file anything. I'm afraid of retaliation from my boss. I would expect them to be angry, and I wouldn't care as much if I was sure that they owed me. Will the people at wage & hour be able to tell me if I have a case before I file anything? I'm trying to keep this hush-hush for now until I'm sure. Your words are encouraging though and I appreciate your opinion.

 

[Beth3]

"Will the people at wage & hour be able to tell me if I have a case before I file anything?" Not having ever filed such a complaint myself or worked for the DOL, I'm afraid I can't tell you. You certainly may ask them with you speak with them again. If your employer retalliates against you for filing the complaint, then you should contact the State DOL again immediately to amend your complaint. The penalties for an employer retalliating against an employee for exercising a protected right (such as filing a good faith wage and hour complaint) are typically much more significant than the complaint itself.