Another Exempt or non exempt question

[cookielou]

What is the name of your state (only U.S. law)? Indiana

I work for a beverage distributor. I was hired in to do cash recs and accounts receivable. I had no prior experience. I was paid a salary and always worked 40 hrs a week.

I recently moved to another position with a raise. I now order all the products and file reports. I am still salary but working 1 or 2 more hours each day. I am actually making less money on the hour now. My boss told me to quit worrying about my hours.

In my old position I was docked pay for hours I did not work (if I left a few hours early) and not paid at all for a sick day. No sick days or vacation only 5 days of PT each year.

I left early yesterday and I am sure they will also dock those hours as well.

Being salary does not benefit me in any way at this company. I almost always work at least 40 hours but never paid full salary if I work a few hours less.

It seems I made a huge mistake taking the "promotion" for $50 more a week but working 5-10 hrs more. I was also told that my hours wouldn't change before I accepted the position.

I know there is probably more info needed and I will provide it all if I can get some help figuring this all out. I've tried to research on my own but it is very confusing about what qualifies as exempt or not. Trying to make sure everything is legal and knowing my rights.

Thanks in advance and look forward to your responses!

 

[ecmst12]

It seems that even if your position qualified as exempt (which it probably does not), by docking your pay when you work less than a full day, they are treating you as non-exempt. They can't have it both ways. Contact your state DOL.

 

[cbg]

Just to clarify - if they dock the actual dollars in your paycheck when you miss a partial day of work, then they are not treating you as exempt even if you qualify.

However, EVEN AN EXEMPT employee can have their vacation, sick, PTO or other paid leave deducted, with or without their permission or even knowledge, to fill the gap when they miss a partial day.

 

[cookielou]

I am not overly concerned not being paid for days off. I am however concerned when I am not paid for a full day if I have to leave early.

I wish I could figure out 100% if I am actually non-exempt. If I indeed was...then they would have to pay overtime without a doubt?

I also just read:The Indiana law does have some significant differences from the Federal law, however. Under the Indiana law, a person may only be entitled to overtime pay if the employer has more than 40 employees. (The Federal Law simply requires that the employer have a gross income of $500,000 irrespective of the number of employees.)

I know it is close to 40 but may be a few under in Indiana. The owner also has the same business in another state with an additional 20 people so I don't know how that would figure in if that was the case.

 

[cbg]

This is what I am saying.

If you normally work an 8 hour day and go home after 6 hours, there are three possible things an employer can do:

1.) Pay you for 8 hours
2.) Pay you 6 hours of regular pay and 2 hours of vacation (or other paid leave), resulting in your still being paid for 8 hours in your paycheck
3.) Pay you for 6 hours.

If you are non-exempt, all three are legal. If you are exempt, then only 1 & 2 are legal.

If you are non-exempt, you never have any legal expectation of being paid when you do not work, but you must get overtime at the rate of 1.5 times your regular rate if you work more than 40 hours in a week. If you are exempt, there are no circumstances whatsoever under which you are entitled to a single penny of overtime, but your pay (that is, the actual dollars in your paycheck) can only be docked in very limited circumstances. Paid leave can always be docked. The Feds have made it quite clear that they don't give a hoot what happens to vacation time; of the 50 states, only California cares at all what happens to vacation while you are still employed and California doesn't care very much.

Not all exempt positions are salaried; not all salaried positions are exempt.

 

[cookielou]

I understand what you are saying in rearguards to time paid or not paid from time off or missed.

Do I just ask my boss if I am exempt or non-exempt? Or the accountant? Or do I ask to start being paid overtime and for the $ that may be owed. All so confusing! I'll be happier when I find a new job and less stress!

 

[cbg]

It is your job duties that determine if you are exempt or non-exempt. If you earn less than $455 per week, you are non-exempt no matter what. If you earn more than that, then your job duties AND NOTHING ELSE decide whether you can legally be considered exempt. Any employee can legally be considered non- exempt. Not every employee can legally be considered exempt.

I don't know who within your employer determines exempt status, or if anyone does and they just don't know the rules. Could be the owner, could be the accountant, could be HR, could be Payroll, could be all or none of the above.

 

[ecmst12]

Any employee can legally be considered exempt. Not every employee can legally be considered non-exempt.

Typo here. It's the other way around. Any employee can be non-exempt, only those who meet the criteria can be considered exempt.

 

[ecmst12]

Also, if they are treating you as non-exempt by docking your pay for partial days off, then it doesn't matter if you meet the exemption criteria - they have made you non exempt and therefore have to pay you overtime. Which is why I said to contact the DOL, since they are the only ones who can both determine if you're being correctly classified, AND enforce the determination.

 

[cbg]

Typo here. It's the other way around. Any employee can be non-exempt, only those who meet the criteria can be considered exempt.

(blush) Fixed it. Thank you.

 

[ecmst12]

Happens to the best of us Didn't want to call you out, but didn't want OP to get confused!

 

[cookielou]

So work did pay me this time for my half day last week. Today I went to the dentist and left a half day. The dentist told me I need to come back tomorrow and a day next week. I called work and the boss told me that he wouldn't pay me for those half days but he was paying me a full day today. (I told them I would again be able to come in half days.) So I am salary so should I take legal action now? Everyone says they cant have it both ways if I am salary and work overtime but never get a penny for it.

 

[cbg]

Once again, your exempt status is not determined by whether you are paid on salary or not. "Salaried" is not a legal term. A non-exempt employee who is paid on salary is still non-exempt; is still due overtime; and still need not be paid any time he does not work. An exempt employee who is paid hourly (think doctor, lawyer, college professor) is still exempt. It is only if the employee is salaried exempt that the issue of partial days and pay comes into play. I don't believe we've ever established whether you are salaried exempt or salaried non-exempt.

Also remember, if he does not "pay" you for the half days but docks your vacation and/or sick time so that you still receive the same number of dollars in the paycheck, that is legal regardless of whether you are exempt or non-exempt.

 

[cookielou]

I have put a call into DOL and also an attorney yesterday. Waiting to hear back from both.

My boss sent me an email stating that $150 is my daily wage and if I work a half day I only get paid a half day. In the past they have chosen to pay me for half days and even full days I have missed. It seems they pick and choose when they want to pay.

Hopefully I can get it all figured out. I suppose it doesn't matter much as I put my two week notice in today

 

[cookielou]

Finally got a call back from both! Both said that I am non-exempt. So now I have to decide how to proceed.
Do I ask the employer for my unpaid overtime and if not then hire an attorney or just go straight to an attorney?

Today the boss said that he will start paying me an hourly wage and reduced it two dollars an hour from my previous "salary" wage. Also said I was at my 40 hours for the week and sent me home at noon. After I left, another employee called me and said that he did the same thing to her and another. They were also on "salary" but now down to a reduced hourly wage. I will be happy to be away from this employer in a couple weeks but I want to do the right thing to help myself as well as current employees and future employees.