Overtime Pay for Exempt Employees
August 17, 2011 8:27 AM   Subscribe

I need the advice of an HR person or labor expert regarding OT pay for exempt employees. I work in Louisiana in an IT field. My company was acquired by another in June 0f 2010. As part of the acquisition process, they changed all employees from non-exempt to exempt (salaried) with the expectation that requirements for overtime were going to be eliminated. Since January 2011, I've logged about 200 hours of OT. I have each item documented in a spreadsheet, and these are legitimate projects that required OT. Am I entitled to any form of compensation? The back pay would be considerable (appr. 10k dollars), but I don't know how to approach the subject with my employer.
posted by murp0837 to Work & Money (9 answers total) 2 users marked this as a favorite
 
Did they change your duties, your control over how you do your work, or anything like that? Or did they just say "now you're exempt and BTW we won't have you work a lot?" Everything depends on what, exactly they changed, because employers don't actually get to decide if you're exempt or not: it's a statutory definition.
posted by SMPA at 8:36 AM on August 17, 2011 [4 favorites]


What SMPA said. You can look up some information about the definitions here. You may want to start with "computer professionals." If you don't believe you fall into any of the exemptions, you might be entitled to overtime, and you might want to either find yourself a lawyer or talk to the department of labor/state equivalent.
posted by dpx.mfx at 8:39 AM on August 17, 2011


I am no kind of lawyer.

If you're exempt, and you're legitimately exempt, then no, you're not entitled to OT pay. Legally, that is. That doesn't mean it's out of the question; I'm exempt and my employer chooses to pay me OT under certain circumstances and those circumstances are spelled out and applied consistently. But if you really are exempt, there's no such thing as OT, really; there's just "Doing your job," which happens to require more than 40 hours a week. That's the theory, anyway; I won't go into the degree to which the IT industry is a poster child for incorrectly applied exempt status for jobs. If you really want to pick that fight, more power to you and I salute you. Just know what you're getting into, eg, suing your employer.

If you don't take that route, there are a lot of things that can impact how you approach this: You say there was an "expectation" that OT would be eliminated. Where did that expectation come from? Is it documented? You say you have a spreadsheet with this data - is there any company-held information that backs this up, like a timesheet, or do you have the only proof of your longer hours? Has the topic of unpaid OT come up with your supervisor explicitly, and did you "voluntarily" work that OT or were you actually told by a supervisor "stay late if you have to in order to get this done?"

Frankly, if it were me, I'd start looking for a new job; you're pulling quite a lot of OT for no pay, and I assume you used to pull just as much, which implies you've effectively taken an enormous pay cut. One of the obvious strategies here is to leverage this for a raise, rather than expecting to ever see any of that back pay, but - if it were me, anyway - I'd be in serious doubt of my ability to successfully get a ~30% raise from this, and I'd find an exit door.
posted by Tomorrowful at 8:44 AM on August 17, 2011 [2 favorites]


My understanding is that exempt does *not* mean exempt from minimum wage. This may vary by state, however.

If there's a likelihood that in any one pay period your overtime dropped your effective hourly to below the state or federal minimum wage, you should consider talking to an employment attorney.
posted by colin_l at 8:47 AM on August 17, 2011


These are answers you should be asking an attorney who meets with you, reviews your position description and any other information. Usually a paid consulation will provide you with the information you seek. I suggest using the lawyer locator at www.nela.org.
If you are in DC or Maryland, MeMail me. I am an employment lawyer. I am not your lawyer and this is not legal advice.
posted by Ironmouth at 8:48 AM on August 17, 2011


(And 200 hours of OT in seven months is a lot, but not a whole lot by the standards of many exempt employees; there are about 160 work hours in a given month, and you were adding maybe 30 more. I don't actually know any IT people working less than 50 hours a week.)
posted by SMPA at 8:58 AM on August 17, 2011 [1 favorite]


Response by poster: Thanks, everyone. I think I'll approach my employer before enlisting the services of labor board members or attorneys.

I worked almost 600 hours of overtime in each of the previous 2 years, so overtime was significantly reduced. It just wasn't reduced to a level that was represented by the company.
posted by murp0837 at 9:06 AM on August 17, 2011


Just changing someone from hourly to salaried does not necessarily change them from non-exempt to exempt. The former are HR definitions, and the latter are legal definitions. Your new employer is banking on the fact that no one is going to complain and that no one knows the law, and if they do, they will still come out ahead financially if they have to pay just one or two people.

If you have each item logged in a spreadsheet, does that mean you keep your hours worked logged in a spreadsheet? If not, you need to recreate that NOW, and take both of those documents to a lawyer, who will tell you what your options are.

Seriously, find a lawyer and talk to him or her before you go to your employer. A lawyer will explain your rights to you in a way you will understand, and help you with next steps. Don't go to your employer until you understand every part of this. If you're talking $10,000 you need to protect yourself and your earned wages.
posted by juniperesque at 9:16 AM on August 17, 2011


1. Go see a Louisiana employment law attorney. There is no way for anyone on MeFi to guess as to whether you are properly exempt from the information you provided. There is, especially, no way to tell if you are exempt under the "computer" exemption, which is more limited than people think.

2. If your claim is valid, the company is potentially looking at lots of liability (because if they misclassified you they surely misclassified others in your class of job), so that may affect (positively or negatively) your interactions with the company if you approach them first. In other words, if there is an issue, they may rush to make it right, or they may rush to take steps to impede your claim. Either way, it would be very helpful to have already consulted an attorney.

3. While we're basically talking about federal FLSA law here, Louisiana law may provide additional benefits. I'm a Texas lawyer, but have had to research Louisiana wage and hour law, and my recollection is that the statutes were weird, were subject to very significant "interpretation" by the courts, and that all in all there are several state law provisions that went further to the employee protection side than the FLSA.

4. See 1. Consult will either be free or not that much. I would think that most employment law attorneys would jump at the chance to talk to you about this given your facts b/c if there is liability, it could be tremendous.
posted by seventyfour at 10:57 AM on August 17, 2011


« Older No, you may not make me into an image macro.   |   What is origin of Howard St. in Waltham, Mass.... Newer »
This thread is closed to new comments.