Changing my classification

[mnhim001]

What is the name of your state? California

Hi,

I am currently an hourly employee. I make overtime, as well as get paid for stand by time and then get paid for call back time. I was moved into a new department, and now the rumor has it that they want to change me to an exempt employee. I am against it, and will choose not to be exempt if they ever come to me about it.

These are just rumors, nothing formal yet.

If I choose not to go with this new classification, can they get rid of me? Can they make me exempt without informing me? and I have have to go exempt, can I negotiate for a higher compensation to offset the loss of OT and on-call pay?

 

[zddoodah]

I am against it, and will choose not to be exempt if they ever come to me about it.

. . .

If I choose not to go with this new classification, can they get rid of me?

It's not a choice you or your employer gets to make. It's the nature of the job that determines whether one is or isn't exempt. I suggest you review some of these search results.

Also note that, while hourly/salaried often line up with non-exempt/exempt, they do not always line up.

Of course, if your employer determines that you are an exempt employee, you are free to disagree and try and convince your employer that its determination isn't correct. You can also take legal action if you are so inclined. You cannot legally be fired for pursuing legal action.

You also could decline the promotion, but you could legally be fired for that.

Can they make me exempt without informing me?

Yes.

[If] I have have to go exempt, can I negotiate for a higher compensation to offset the loss of OT and on-call pay?

As you'll see if you review the search results I linked, in order to be exempt, you need to be paid at least twice the minimum wage. That aside, you can try to negotiate for anything you like at any time. Your employer, however, is free to decline to negotiate with you.

 

[LdiJ]

What is the name of your state? California

Hi,

I am currently an hourly employee. I make overtime, as well as get paid for stand by time and then get paid for call back time. I was moved into a new department, and now the rumor has it that they want to change me to an exempt employee. I am against it, and will choose not to be exempt if they ever come to me about it.

These are just rumors, nothing formal yet.

If I choose not to go with this new classification, can they get rid of me? Can they make me exempt without informing me? and I have have to go exempt, can I negotiate for a higher compensation to offset the loss of OT and on-call pay?

First google some information on who can be treated as an exempt employee and who cannot in your state. If you don't fit the criteria it gives you a stronger position. Generally, a desire to change someone to an exempt status either goes with a significant increase in responsibility (ie to a management position), or a desire to get more work out of the person for less overall pay. Or even a fear that a raise will cause them to become too expensive if they also get overtime. Most management, or professional positions, are exempt.

 

[cbg]

Just a bit of clarification:

1.) No law requires that you receive a raise with a promotion. However, there are both state and Federal regulations which have determined that, in order to be considered exempt, the employee must be earning x. In California, the state x is higher. So while you do not need to be given a raise if you are earning over California's x, your position cannot be considered exempt if you are earning less than x.

2.) All jobs cannot be considered exempt under the law. Your job duties determine whether yours can or cannot. However, IF your job duties and your wage qualify you to be exempt, it is your employer's opt, not yours, which you are.

3.) IF your job duties and your wage qualify you to be exempt under CA's definitions; your employer wants to classify you as exempt, and you refuse, you can be fired and it will be entirely legal.

4.) However, if your job duties and your wage do not qualify you to be exempt under CA's definitions, your employer cannot make you exempt and you have legal recourse if they persist.

5.) Z's links are a very good place to start.

 

[Taxing Matters]

If I choose not to go with this new classification, can they get rid of me?

Your employer could do that. But if your job assignment does not meet the requirements for being exempt, that might give you a claim for wrongful termination and would also open the employer up to fines or other sanctions by the federal and state labor departments.

Can they make me exempt without informing me?

Any change to your pay, working conditions, and benefits must be communicated to you before they take effect. Employment is a contractual relationship, and the terms and conditions of employment (at the very least the rate of pay and the general nature of the work you'll be doing) need to be agreed upon by the employee (or independent contractor) and the employer before the work begins for the change to be enforceable.

and I have have to go exempt, can I negotiate for a higher compensation to offset the loss of OT and on-call pay?

If the job meets the elements for being exempt, then you have one of three choices: (1) accept what the employer is offering, (2) quit and look for something else, or (3) attempt to negotiate for a better deal. Of course, to negotiate your employer has to be willing to discuss changes with you. If it won't negotiate, you are left with options (1) & (2).

An employer may choose to treat someone who qualifies as an independent contractor as an employee. But the reverse doesn't work: an employer may not treat someone as exempt if the person does not meet the requirements of being exempt.