Salary Employee inquiring about ovetime pay. Exempt / Non-Exempt status.

[katoxnyc]

I live in New York City. I have been employed by a retail company for 4 years. Position is Computer POS systems Support technician (40% time doing help-desk support 60% time in the field) I am a salary employee, 56k a year. There are 5 other individuals who have the same position as me and we are required to do the following as described below.

Since I started, there has been something called "On-call" which I am forced to work every other week. I work my regular 9-6 schedule 5 day week but then every other week Fri 9am-6pm then be "on-call" from 6pm-2am , Sat 8am-5pm then on-call from 5pm-1am

That's an extra 8 hours on that Friday night + 8 hours on that Saturday night = 16 hours every other week. That equals to an extra 52 days per year that I am working !! for free without compensation

*On-call means I have to immediately support any calls that come in via phone support, and 90% of those calls require that I be at a location with my laptop and with internet access aka Home to address those calls.

The company does not pay me overtime nor compensate me with comp time, and my managers do not acknowledge that there is an issue, "If i do not like it there is the door"
***The Question is ...
Is my position exempt or non-exempt from overtime pay by being a salary employee?
-From my understanding i should get it, i am not in any executive or managerial position.

I am stuck, i do not know whom to contact, the managers above me don't acknowledge the issue, and from what Ive been told if i go to human resources they will just communicate with my direct managers to discuss the issue which will make the situation even worse.

Any advice would be helpful.
Thank you

 

[cbg]

It is your job duties that determine your exempt/non-exempt status, not how you are paid. Not all exempt employees are salaried; not all salaried employees are exempt.

Non-exempt is the default. All employees are considered to be non-exempt unless the employer can prove that they are not. So there's at least a reasonable possibility that you should be non-exempt. However, you have not provided enough information for us to say for sure. There is such a thing as a computer professional exemption; it's not just managers and executives. There are, in fact, over 100 exempt categories - it's just that the ones most people think of when they hear, "exempt", are the so-called "white collar" categories. Shepherds are exempt. So are movie theatre personnel. So are the employees of seasonal amusement parks. We can't say whether you are or not, with the information you've given us.

If you are non-exempt, then you must be paid for the time you are actually working while you are on call, and if that takes you over 40 hours for the week then that is overtime. However, whether you need to be paid for time that you are on-call but not actually ON a call, is very state- and situation-specific. In NO state does the law say that you have to be paid, just because you are on-call. In ALL states, whether you have to be paid for the time you are on-call, but not ON a call, is determined by how restricted your time and activities are. Only the NY DOL could say for absolutely certain whether that time is compensable for you, or not.

If you are actually exempt, then it doesn't matter if you work 168 hours a week; under the law you are not due a single penny over and above your regular salary. Ever. Under any circumstances whatsoever.

If you'd like to be a bit more specific about what you actually DO, we might be able to give you an informed assessment as to your exempt status.