Q–I have been working for a company for about 10 years. After seven years, my status was changed from hourly, where I received overtime, to salaried, but I am doing the same work. Since I have been exempt from overtime, I have been working 50 to 60 hours a week.My boss says I can take paid time off when the work load eases up, but I would rather be paid for the overtime or have the choice to not work it. Are there any laws to help me?
A–Salaried vs. hourly and exempt vs. non-exempt are often misunderstood by employees and violated by employers. The Fair Labor Standards Act is the federal labor law that establishes the minimum hourly wage rate and requires employees to receive time and one-half their regular pay rate for hours worked over 40 in a week. If an employer wants to exempt an employee from receiving overtime pay, it must meet certain requirements. Employees are not exempt simply because they are paid on a salary basis. Besides, some salaried workers are entitled to overtime pay.
The three main types of exemptions from overtime are for executive, administrative and professional positions. All three must meet two tests–payment on a salary basis and certain types of job duties, which vary for each exemption type. Chicago attorney Jac A. Cotiguala, chair of the Chicago Bar Association Labor and Employment Committee, says both tests have many requirements that an employer can unknowingly violate. For example, if an employee qualifies as exempt from overtime and is docked in pay for a partial day’s absence, the employer now no longer meets the salary basis test and that employee should receive overtime pay. Also, an employer cannot change an employee’s status from non-exempt to exempt if he or she is doing the same work, unless all requirements of an exemption are met.
No private employer is allowed to use compensatory time in lieu of monetary payment. The FSLA allows compensatory time only for government employees.
As for mandatory overtime, some states have laws requiring time off after a certain number of consecutive hours and days are worked. Cotiguala suggests that employees consult with the National Employment Lawyers’ Association in San Francisco at 415-227-4655 or their local bar association for more information.
Q–My boss asked me about taking on an additional job that he felt would round out my portfolio. I estimated that the job would initially take 45 percent of my time and ease up as I learn the basics. But he said that my salary was at such a high level that he could not give me an increase. I declined the additional job. He then asked if he could approach my assistant to take on this work and I agreed. He then offered my assistant the job with a 25 percent pay increase. My assistant accepted. This makes no sense to me.
A–It looks like the boss learned something by talking to you. When you refused to do more work for the same pay, he realized that he would have to offer more money to the person who accepted the job. Since your assistant’s salary was probably much lower than yours he figured he could better afford a 25 percent increase there. But if the work could have been down by a less qualified employee all along, it’s hard to see why he asked you to do in in the first place.
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Write to Lindsey Novak, Jobs, Room 400, 435 N. Michigan Ave., Chicago, 60611. E-mail her at AtWorkbyLN@aol.com
