Salaried employee being asked to "repay" wages

[qurice]

What is the name of your state? TX

This might be long, so please bear with me I am employed. as a massage therapist with a spa that has several locations around town. I took a "promotion" as the supervisor of my site with a reviewed every 3 months to allow me to step down, or allow the business to bring someone else in if they didn't like my performance. They offered me a salary of $455/week said I should do at least 11 services per week, and gave me a list of additional managerial tasks.

Before taking the job I ran the numbers, and it appeared to be a wash because doing 11 services as a therapist, I'd be making about $455/wk anyway. I discussed this with upper management and was told I'd also be given a bonus of .5% of the total volume of my site(s) and that for my site's volume it should be about $200 a month. So I accepted.

Fast forward 3 months, the bonus was not as projected and was $30/wk, so I ended up taking a pay cut and doing more work. This week at my evaluation session I decided to relinquish the supervisor position.

During the 3 months, I was not able to meet the 11 services per week. I discussed this with upper management throughout. Sessions were missed because of manager and staff meetings, new hire orientations, individual meetings with upper management that were at the last minute rescheduled after the my services were reassigned to someone. My evaluation meeting was rescheduled 4 times.

So now that I decided to not stay on as manager, they are now telling me I owe the business 25 sessions because they feel they overpaid me. So they either want me to do 25 sessions for free, pay them back, or keep doing some of the managerial work in my off-time to make it up. But they said if I stayed on as manager, they will let it slide and I won't be required to make it up.

I have two questions:

1) Can they legally require me to perform or payback for work that was not performed as a salaried employee? To my knowledge, I did not sign a contract or anything when I took the managerial position.

2) I've noticed that the company is keeping any gratuity that the client charges on their card, or to their hotel room. My paystub shows I'm getting gratuity in addition to the massage time, but when you add it up, it equals the $455/week salary. I had brought it up before to management, but this week someone gave me a $100 tip on a $90 service but since he charged it to his credit card, I don't think I will see it Can they keep that?

Thanks

 

[pattytx]

Nope, I'm not buying it UNLESS they retroactively change you BACK to nonexempt hourly, and pay you as you would have been paid under the old pay structure. And even that could be problemantic.

The problem with their stance is that, in order to meet the criteria for an exempt employee you must (with limited exceptions which don't apply here) receive that $455 per week guaranteed, without reduction for quality or quantity of work. Failure to do that means they cannot treat you as exempt.
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/29CFR541.602.htm
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/29CFR541.603.htm

 

[TinkerBelleLuvr]

They cannot legally withhold gratuities from the employee. IF it was charged, then can legally pass along the credit card charge for that portion of the tip. In your example, the CC charge for the $100 would probably be 3.50. They can give you $96.50. That is a very big red flag there.

 

[xylene]

You have a valuable professional skill and no doubt could easily find new employment.

You might consider quitting (with notice) and leaving them in the lurch.

 

[pattytx]

Sorry, I missed the gratuities piece. As an exempt employee, the salary MUST be guaranteed. Since gratuities are not, and a big piece of your weekly time appeared to be doing nonexempt work, I'm starting to wonder whether you ever met the criteria to be an exempt employee at all.

 

[qurice]

Sorry, I missed the gratuities piece. As an exempt employee, the salary MUST be guaranteed. Since gratuities are not, and a big piece of your weekly time appeared to be doing nonexempt work, I'm starting to wonder whether you ever met the criteria to be an exempt employee at all.

pattytx, thank you for your replies. Can you clarify your statement or point me in the right direction?

The company advised us to have a 50/50 balance of managerial duties and services. Whether or not I was able to achieve that, I'm not sure. I know that I did take paperwork and scheduling tasks home regularly.

 

[pattytx]

http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17a_overview.htm

 

[qurice]

I thought, I'd keep all my issues together and keep it in the same thread..

After many discussions with management I was able to avoid being bullied into doing work for free, or being garnished for what they believed I "owed". I also managed to stay employed and went back to being an hourly/commisioned massage therapist.

Now that I am once again being paid gratuity I have noticed that my employer is holding more than what they said they would. They stated they would withhold 10% of the gratuity to cover supply costs. Their reasoning is so therapists and aestheticians (sp?) won't have to buy the costly product kits themselves. They don't have this in the employee handbook (I check last night). I have 2 problems with this..

1) I figured buying supplies is part of the costs of doing business. I could understand withholding for supplies if the people doing the work were contractors, but they are regular employees. I thought they weren't supposed to hold any gratutity except for processing fees for CC transactions, right? Anyone know how I can find out what the actual transaction fees are?

2) They are actually withholding almost 17%, not the 10% as stated in several employee meetings. If it's legal for them to withhold for "supplies" should I ask them to put this in writing (employee handbook) to hold them to that 10%?

Thanks again in advance!

 

[xylene]

Employee handbooks are not contracts. So that isn't the issue.

BUT

If you struck a bargain at 10% you must insist they keep that up.

Otherwise quit.

 

[EagleAngel]

By your employer's logic, what happens if you don't collect gratuities? Or if they're paid in cash? How do they get the money for their supplies in that case? I'd be curious of their response.

 

[TinkerBelleLuvr]

Effective January 1, 1986, all tip income, including charged tips reported by an employee to his or her employer, are wages.

http://www.twc.state.tx.us/ui/tax/manuals/law/law_ch4_01.html#4.2.2.6

Question is whether an employer can deduct supplies from an employee's wages?