Can they lengthen my workweek?

October 13, 2009 9:38 PM

Is a 45 hour workweek BEFORE overtime legal?

I work in an entry-level position at a small company in an industry fairly well known for having long hours (not software!). When I started the job, they told me I'd be working at least two overtime hours a day; in fact, I often work a lot more. My paycheck has often turned out to be 2/3rds normal hours, 1/3 overtime.
Today, the two admin people sat the three entry-level people down and, in order to correct some "discrepancies", they were switching us over to a 45-hour work week; as such, they are only going to give us overtime for hours after 9 hours a day.
I'm not a lawyer, but I feel like there was that whole labour movement, children out of mills, 8 hour workday, right? They can't just give a guy a 45 hour workweek, right?
I work in New York City; I'm not entirely sure if I am hourly or salaried (i.e. they gave me an "annual salary" number when I started, but that is based on a 40 hour work week, with pay being allocated based on time worked, plus overtime).

posted by 235w103 to work & money (16 comments total)

That is not kosher.
posted by kathrineg at 9:42 PM on October 13

What do you actually do? You need to figure out if your job meets any of the "exempt" categories listed here.
posted by 0xFCAF at 9:45 PM on October 13 [1 favorite]

This depends heavily on whether you're hourly or salaried. I'm salaried, but my employer has a (soon ending, but let's ignore that) 'overtime' policy that kicks in once I've worked 50 hrs a week - I'm paid "hourly" for the 51st and further hours. But that's effectively a bonus to be keep us happy, not a formal overtime. If you really are paid hourly, then yes, it sounds less than kosher.
posted by Tomorrowful at 9:52 PM on October 13

No, they can't, unless your job is one of the exempt categories listed in 0xFCAF's labor dept. link.
posted by krakedhalo at 9:52 PM on October 13

It depends not on if you're hourly or salaried, but if your position is correctly classified as exempt or non-exempt under the Fair Labor Standards Act based on your job duties. (Note: the fact that it's based on actual job duties, not your title, is important!)

If you're exempt from overtime requirements (doesn't mean the company can't pay it, just that they're not legally obligated to), then yes -- they can change your work week to 45 hours and there's not much you can do about it. If you're non-exempt, then FLSA does require you to get overtime pay for anything over 40 hours worked in a week.

You might find the DOL's Overtime Security Advisor useful. It'll take you through the salary and duties tests used to determine the category a job falls into. You might also find their FairPay site helpful.
posted by ThatSomething at 9:54 PM on October 13 [2 favorites]

I am a vault manager/editor's assistant/general handyman at a small film editing firm. As far as I can tell, the only thing that I might be under is the "administrative exemption"- however, I do a fair amount of manual/"creative" work (in the sense of it being specialized). I am really not certain about the salary situation.
posted by 235w103 at 10:02 PM on October 13

To give you a general idea of what I do- today I helped another vault guy built shelves, while also posting sample videos for clients to the server. I order and plate lunch for clients, I make DVD reels, I do graphic design and editing, I pack and ship boxes of materials. I am frankly just not certain how much of this is considered "office work" and how much isn't.
posted by 235w103 at 10:05 PM on October 13

If you're doing what someone else tells you to do, and you're not managing anyone, and the job isn't particularly creative, you get overtime.

Ordering lunches and packing boxes and building shelves and posting (as in "hey, worker, put file X on the server today"), definitely overtime.

What percent of the time do you do this kind of work?
posted by zippy at 10:26 PM on October 13

The "creative" and "administrative" exemptions are for people who direct their own projects. That is, your duties are largely self-defined or goal oriented. They say, "design a house in eight weeks", and you go and do that. Not only the "how", but also the "what" of each day's tasks are self-directed.

If, on the other hand, your daily tasks are managed by another person, then you might be improperly classed as exempt. So if your boss says, "Go pack these boxes, then muck out the stables, then design a postcard," then you have a good case that you're not exempt. So, you might be exercising creativity in "how" you do the job, but you don't control what your daily tasks are.

The basic idea behind the exempt status is that if you have the ability to define your own tasks, and must be paid overtime, then you can simply define some more tasks for that day and soak your employer for overtime. If, however, your tasks are assigned to you such that you must work more than 40 hours a week, that you should be compensated for your compulsory participation.

There's a lawyer who's had great success in California and New York arguing that investment bankers and software engineers do not have administrative or creative jobs, and so are not exempt from federal overtime requirements (but I can't find the site; it made big news a couple years ago). The basic argument is that a programmer has an assigned list of bugs or features, none of which he has invented or created, which he must fix or build to a set of specifications. Thus, he's the software equivalent of a machinist with a list of parts to build. If he's the system architect, actually making the spec, then he's still exempt.

The problem with pursuing these sorts of arguments, however, is that your company won't listen. They have absolutely no reason to listen, because the common wisdom is that anybody doing "knowledge work" or "office work" is exempt from federal overtime requirements. The only way to convince them otherwise is with a lawsuit. And after that lawsuit, can you really imagine your workplace being friendly toward you? This is why I never brought this up at any of my programming jobs. The successful lawsuits mentioned above were filed after termination of employment, for back wages.
posted by Netzapper at 10:27 PM on October 13 [6 favorites]

Oh, and salary versus hourly has nothing to do with it.

That's another bit of common wisdom that turns out to be totally untrue.
posted by Netzapper at 10:30 PM on October 13

Just out of curiousity, could you define what you mean by "9 hours a day"? I have worked with people who believed that they were working a 9 hour day because they arrived at work at 9AM and left at 6PM. However, that hour lunch break in the middle of the day meant that they were, in fact, only working an 8-hour day. I don't think this is what's going on with you, but I figured it's best to rule it out.
posted by dersins at 11:58 PM on October 13 [1 favorite]

Oh, and salary versus hourly has nothing to do with it.

How so? Nobody I know has ever gotten paid overtime on salary, while working hourly jobs you always get paid time and a half. This post goes into some detail about a situation somewhat similar to the above poster, specifically the situation is resolved in such a way that the regular rate is determined at the end of the week, after all of the hours are calculated, and as long as the regular rate is still above minimum wage and you are making 1.5x regular rate for any overtime worked, the employer is in the clear. So essentially, yes, they can make you work more hours and not pay you anything extra as a salaried, non-exempt worker. This is not true for an hourly worker whose regular rate is negotiated beforehand.

The real question here is how do you not know whether you are hourly or salaried? You probably signed something when you got hired, go dig it up and read exactly what it says. You say "they gave me an "annual salary" number when I started, but that is based on a 40 hour work week, with pay being allocated based on time worked, plus overtime", as far as I understand, one of the issues here is whether or not there was a specific figure listed per hour, or per week/month on the contract itself. If I am mistaken in this, someone please correct.
posted by sophist at 3:12 AM on October 14

How so? Nobody I know has ever gotten paid overtime on salary, while working hourly jobs you always get paid time and a half.

The simple fact of the matter is that exempt status is widely abused. Employers, in my experience, label everything salaried as being exempt from overtime. They basically think that anybody doing office work is exempt from overtime. And people take it, because they think like you do, that salaried employees are exempt from overtime requirements automatically.

What is true, however, is that to have exempt status, you must be paid on a salary basis. You cannot be paid hourly and then also denied overtime pay. However, being paid on salary is not sufficient in and of itself.

According to FLSA.com, you must fulfill all three of the following criteria:

1. Be paid $455 or more a week.
2. Be paid on a salary basis, in full, the same amount, for any week in which you perform at least one day's work, without variations in pay due to work quality or quantity
3. Perform overtime-exempt duties.

I don't think there's any debate on points 1 and 2, so scroll on down in that link to the heading "Exempt Administrative job duties", or here's an alternative link. This is the exemption class that most employers use to claim exemption for anybody doing non-manual labor on salary.

Most employers read "office or nonmanual work" and then stop. What they don't take into account is that you have to be doing actual administrative work. That is, you must be making decisions of consequence in the company as a whole. If your decision-making capacity is limited to whether you use Arial or Times New Roman on your TPS report, you're not actually "[exercising] independent judgment and discretion about matters of significance."

For computer professionals, or at least those not explicitly exempted in the statute, they tend to use the "learned professional" exemption. However, computation is not a recognized artistic field. And most of us don't have an advanced degree of any sort, nor do we have engineering degrees or certifications. The non-exempt arguments apply mostly to peon programmers, as I'll readily (if begrudgingly, since I fucking hate 40+ hour weeks) admit that a systems architect or a lead programmer is doing both learned and creative work.

And now folks trot out the old "but if it's illegal, how come they don't get busted" argument. They don't get busted because, in order to bring any of the FLSA legislation to bear for their benefit, the employee must sue. Suing your employer is rarely good for your job security. And, like I said, most HR departments have their employees convinced that they're exempt... after all, don't you make decisions and judgments all day? Which simply further perpetuates the salaried == exempt bullshit.
posted by Netzapper at 3:55 AM on October 14 [6 favorites]

I do a fair amount of manual/"creative" work (in the sense of it being specialized).

I don't think Local 829 is the right fit but maybe they could put you in touch with a union that would represent you.
posted by MLIS at 6:49 PM on October 14

Is there a chance you misunderstood what they said. I know that some animation studios have switched to a 45 hour work week. They still pay 5 hours of overtime, but they reduced the regular pay so that what you get for 45 hours equals what you used to get for 40.
posted by IndigoSkye at 2:30 PM on October 15

Nobody I know has ever gotten paid overtime on salary

sophist, when I worked as a paralegal (in NYC), I was salaried and earned overtime.
posted by Majorita at 4:28 PM on October 15