Non-Exempt and compensatory time off?

[TINAMC13]

In California, can a non exempt salaried employee request time off in lieu of overtime pay? I work at a small company and our employer says that we all will be switched to hourly wages in order to allow for compensatory time off in lieu of overtime pay. she says salaried employees CANNOT have CTO they have to be paid in overtime, hence the switch.

Thank you for your input!

[cbg]

The following is Federal law and applies in all states.

Assuming that you are working for a non-government employer, there are no circumstances whatsoever in which a non-exempt employee can receive comp time in lieu of overtime pay. (It IS legal, in all 50 states, for an employer to rearrange the employee's schedule so that they do not work overtime hours, but that is not the same thing as comp time despite many employees' attempts to make it so.)

For exempt employees, comp time is legal but not required.

Salaried is only a pay method and means nothing in and of itself.

[TINAMC13]

thanks for your input. I really appreciate the help. so would there then be any specific reasoning behind an employer insisting on switching us to an hourly status over salaried? her explanation (and her lawyer's) is that this the only way we can create a way to compensate in time off rather than pay, but in everything i have read it seems that it doesnt matter if you are non exempt salaried or hourly--both have the same requirements over overtime wages?

can hourly employees, then, receive the time off instead or is the situation the same as if we were classified as salaried?

bottom line is, the nature of our business will require us on occasion to work overtime and there is no way to 100% avoid it, so one way or another we will be compensated for it. But I am confused as to the justification in changing our payroll to an hourly basis and the fact that they say this is the only way to allow for the time off situation. i was hired as a salaried employee many years ago and would like to remain that way.

[pattytx]

Her lawyer is, um, uninformed. Although California law appears to allow comp time for private employers, federal law does not, so federal law wins.

Yes, nonexempt is nonexempt and the overtime rules apply, regardless of the pay method. There are arcane exceptions in federal law (basically, the fluctuating workweek method, and Belo plans), but my understanding is that California prohibits those.

They can switch you to hourly without your approval, but it doesn't change the overtime situation. Remaining "salaried" as long as you are still nonexempt, doesn't change anything legally.

[TINAMC13]

Does anyone know where I might find citations to prove the above? I've tried searching a bit for the exact legal wording but the information thats out there is a bit overwhelming. I guess i just need to show her the part of the law that shows that non-exempt (which would cover either salaried or hourly employees) cannot accept CTO regardless of their payroll classification, thus not a reason for changing us from salary to hourly.

So am i right in understanding that employees cannot request CTO even if for sake of argument they wanted to. that an employer is obligated to pay the overtime in dollars? what about the formal written requests that i have read about on some of the labor law sites...

[cbg]

Patty will probably have the exact citations.

A few years ago, there was a bill before Congress that, if it had passed, would have allowed employees who preferred comp time to overtime, to choose it. Due to a great deal of misinformation and a lot of scare tactics, the bill failed to pass.

So at the present time, you can get a signed statement witnessed by President Obama, the US Attorney General, and the Pope, declaring that you waive your right to overtime and want comp time in exchange, and your employer would be in violation of the law if they allowed it. There is NOTHING under the current law that would make it legal for a non-exempt employee to waive overtime in favor of comp time, even if that is what they would prefer and even if they are prepared to say so in writing.

[pattytx]

[url]http://www.dol.gov/esa/whd/regs/compliance/whdfs23.pdf[/url]