Exempt to Non-exempt with 24/7 availability? Hmmm.
October 13, 2017 3:01 PM   Subscribe

I anticipate a classification change from Exempt to Non-exempt. What's the best way to preemptively document and respond to ongoing after-hours expectations?

I've had a position for twelve years at a small public agency. It's VERY small. All employees cover multiple areas. One of mine is website administration. I do whatever is needed, whenever it is needed, 24/7/365. Any hosting or technical issues, emergency updates, press releases, they all come to me, and of course everything is last minute and "urgent" (and unproofed). I take care of things in the middle of the night, on vacations, etc. This does not happen every single day, but often several times a week.

It's all good and I'm invested in doing a good job.

Now, after years of pressing, I *finally* received a proposal for a formal job description. The job description itself is acceptable, but a change from Exempt to Non-exempt is unexpected. The only current benefit I would lose would be a modest cell phone stipend. I don't think they are clear on the benefit of my availability to the organization--there will be no one else available to do these things, and I would have to start charging for the time. Alternatively, I wouldn't mind NOT being available at all after my work day. One or the other.

I have a week to provide comment on the job description and I would like to clarify expectations with my comments to avoid surprises going forward. I'm asking for advice here because my boss' eyes glaze over upon hearing the word "website", and although he is very intelligent, his verbal skills are modest and he does not like being questioned. He is very process oriented and perceives himself as highly efficient (the fact that it has taken me six years to get a job description may indicate otherwise). We have no HR person or department, and employees do not receive reviews (or job descriptions, or raises) as required by our administrative code. It's a bizarre place. Not a state agency, but located in CA.

I need to be super-clear and simple in addressing this because I can foresee it becoming an issue almost immediately. I'd also appreciate general advice on the change from Exempt to Non-exempt--after reading past questions I am not too concerned but I do want to be aware of potential pitfalls.
posted by anonymous to Work & Money (8 answers total)
 
You may want a discussion that's basically, "Currently, I work 40 hours a week in the office, and an average of X hours per week from home, doing tech support. As a non-exempt employee, that additional work would be overtime, with the additional hassle that there's a minimum of a half shift's hours anytime I'm called into work." (California-specific article; same basic details.)

Basically: You work your normal shift. You go home. You get called to fix a problem; it takes 30 minutes. You make 30 minutes of overtime pay - and 3.5 hours of "reporting time," because they're not allowed to pay you for less than half a shift length. If they reduce your "official" shift length, there's still a minimum of 2 hours of pay.

Every off-hours phone call becomes at least 2 hours of pay. (Unless several are included in the same 2-hour window.) The actual time you spend working is overtime. This sounds like it'd be a very nice advantage for you - but of course, if the company isn't braced for it, it's a disaster in the making. It's entirely legal (as far as I can figure out; IANAL) to have your job require on-call nights, weekends, etc work - but you get paid at least half a shift's hours whenever you're called to work.
posted by ErisLordFreedom at 3:37 PM on October 13, 2017 [3 favorites]


If you have records of when you've had to respond while on call, you could prepare a report for your boss. Something along the lines of "Over the last X days, there were Y incidents that required me to work outside of normal hours, which would have cost the company $Z in overtime pay if I were non-exempt."
posted by Lexica at 3:37 PM on October 13, 2017


Being exempt or non-exempt is not a choice you can make, though. If their lawyers have determined that your role makes you non-exempt, that is what you will be. So those statements should not be "would," but "will."
posted by praemunire at 5:44 PM on October 13, 2017 [3 favorites]


public agency

You say not a state agency, but if you really mean "public" like government, the overtime rules that apply to your employer may not be the same overtime rules that apply to everybody else. So it might not be "one or the other"--the third option is that you might be in a position that's eligible for comp time where you'd just bank whatever overtime hours you do and get some extra vacation time.
posted by Sequence at 7:19 PM on October 13, 2017 [2 favorites]


This may be the time to spend money on an hr or two with an employment lawyer, get the draft job description and your status assessed and a clear understanding of your rights. And then you can talk to your boss in that knowledge. Also, based on the little information to go on, I wonder if your boss will understand the employer obligations here. So yes, may have to put information together and give them a chance to digest.
posted by koahiatamadl at 6:47 AM on October 14, 2017


Yes it will be super important to get the implementation details of overtime work ironed out and WRITTEN DOWN as soon as possible. This is one of those things that can cause grudges because everyone thinks "we're all adults here, we'll just be cool" will work. But it's actually messing with some very touchy subjects - your pay, and management right to assign work.

Some issues you're going to want to have addressed that you might not think of right away, is HOW, WHEN, and WHO will authorize overtime work? Can anyone just call you up and ask for you to do something, and then you get paid for it? Do they need to get approval to call you first (i.e., their problem if they commit you to something dumb)? Do you need to call someone and get permission to work on a request you just got? How is this authorization going to be documented in case a dispute comes up? What happens if you do it, and then someone thinks it wasn't authorized - do you get paid anyway? How often will it be reviewed - you want often, so you don't get a big surprise after you've put in a significant amount of free work, or someone wanting money back paid to you six months ago.

The written policy doesn't have to be perfect, but it is important to HAVE ONE, so that it can be amended as issues come up. Do not do this all by word of mouth and handshake.

Also get familiar with whatever statutory or regulatory rules apply to you (I'm federal, so 5 USC and 5 CFR) - certain things don't count as overtime (for me) no matter what, so that seminar I went to on labor negotiation that went 5 days from 8am to near midnight every day? 8 hours of straight time each day. (overtime for training not permitted by law). I volunteered to attend knowing that, or else that could have been a significant avoidable dispute and hard feelings all around.
posted by ctmf at 12:16 PM on October 14, 2017 [2 favorites]


everything is last minute and "urgent" (and unproofed)
This is part of your office culture right now and you have an opportunity to change it. Things that are always an emergency will suddenly become less important or requested sooner when there is a time or money cost to the emergency status. Your boss has to back you up on your pushback.

As people said above, you need clarification on how you get authorized to work OT. It is your boss' job to decide the policies, but you will need to push him to do so and stand firm. Someone calling you and you telling them "No, I can't do that right now" is still work. Does he want you to say no and charge accordingly, not say no since you are now on the clock and charging accordingly, call him and ask for permission (maybe above a certain amount of time per week) or not answer the phone at all? Answering your work phone or emails is still work.
posted by soelo at 9:04 AM on October 16, 2017 [2 favorites]


Also, some organizations have budgeting in place to charge support work OT to the requesting department. It may not hit your boss' budget at all, which may make things more complicated.
posted by soelo at 9:07 AM on October 16, 2017


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