Comments on: Can my employer paid everyone else overtime but me?

Question: Can my employer paid everyone else overtime but me?

boognish — Mon, 26 May 2008 20:11:03 -0800

Everyone in my department at work (desktop publishing) is paid overtime except me (I'm salaried) and we all have the same job title and responsibilities. Is this legal?

I used to be hourly but then was promoted to a salaried position about a year ago. Then around the beginning of 2008, my position was eliminated and I was placed back into my old department and given the same position as everyone else but I was never switched back to hourly. Then we got busy and I worked a lot of "overtime" that I never got paid for. Do I have to be paid hourly like everyone else since we all have the same position, and if so, am I entitled to the overtime money I should have received?

By: notsnot

notsnot — Mon, 26 May 2008 20:16:18 -0800

Unfortunately, my understanding is that they can fuck you like this all they want. The time to complain would have been before you started working all the over time. Now, it's too late, unless your bosses are too generous to actually be bosses.

By: [insert clever name here]

[insert clever name here] — Mon, 26 May 2008 20:21:57 -0800

Depends, but maybe. Most of the time there are certain requirements for the type of job that can be considered exempt (I assume that's what you mean by salary). You'll need to check with both the federal and state law.

If it turns out you should be classified as exempt, you can get back pay. There is a statute of limitation on that, but I'm not sure what it is.

Now, do you want to ruin your relationship at that job? That's the other question.

By: citystalk

citystalk — Mon, 26 May 2008 21:02:18 -0800

is their hourly rate the same as your salary/40 hpw? do they have the same benefits? vacay time? make sure you're comparing apples to apples before drawing conclusions, too! :)

By: Fiasco da Gama

Fiasco da Gama — Mon, 26 May 2008 21:14:10 -0800

In Australia, it would be technically illegal but very hard to solve. Workers on enterprise bargaining agreements or awards could reasonably expect back-pay for unpaid overtime worked, but they'd likely have to negotiate for it. Workers on individual contracts could see a lawyer to have the terms of their contract enforced, which presumably would have overtime and penalty rates specified.
I am not your industrial lawyer, union delegate, organiser, industrial officer or agitator. Everything depends on where you live and the industrial relations law in your country, state, and region.
That said: unpaid overtime is a scourge, and your employers sound like jerks. There's a very specific word for bosses who expect their staff to work for free.

By: vertigo25

vertigo25 — Mon, 26 May 2008 21:19:04 -0800

Actually, you're probably owed overtime by the company, unless you're in an administrative or professional position. This page helps sort things out a bit.

If you have any free law clinics in your area, you should go talk to them. Definitely consult a lawyer before you talk to your boss(es).

By: Remy

Remy — Mon, 26 May 2008 21:19:05 -0800

I am not a compensation analyst, but my wife is.

notsnot is incorrect. Employers do not have the right to "fuck you like this all they want", nor are you compelled to say something "before" whatever arbitrary line in the sand your employer draws. Back pay lawsuits are frequent and often expensive for employers who incorrectly categorize employees.

There's a series of tests that are applied to determine whether or not your position is exempt; they depend on both state and federal law. Note that whichever law gives you the better protection is the one that applies. I can't tell what state you're in, but here's a few resources from the Department of Labor:

Fact Sheet #23 - Overtime Pay Requirements of the FLSA
Fact Sheet #17A - Exemption for Executive, Administrative, Professional, Computer &
Outside Sales Employees Under the Fair Labor Standards Act (FLSA)
FLSA Reference Guide

Also, since it came up, from the DOL site: "A 2-year statute of limitations applies to the recovery of back pay, except in the case of willful violation, in which case a 3-year statute applies."

It's also "a violation to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under FLSA." That said, if you bring an FLSA complaint and you and your coworkers are eligible to be exempt, then the company may shift everyone to exempt status and you'll have a lot of grumbling coworkers. This is unlikely, though, as companies that can make people exempt often do so rather quickly.

Were I in your shoes, I'd get an explanation from your bosses as to why you're being treated differently (assuming everyone has the same duties and the same title), and if the explanation doesn't touch on the reasons listed for making a position such as yours exempt ('change of status' power over two employees, independent discretion and decision making, etc), contact the DOL.

By: vertigo25

vertigo25 — Mon, 26 May 2008 21:22:16 -0800

Oh.. wait... I just noticed "desktop publishing." Change my "you're probably owed" above to "you may be owed." :)

Your actual work may fall under the "professional" category, depending on what you actually do.

By: wangarific

wangarific — Mon, 26 May 2008 21:23:40 -0800

This could also be a case of oversight, simply mentioning it may remedy the issue. (or not, in which case you'd have to roll with Remy's well informed advice)

By: toomuchpete

toomuchpete — Tue, 27 May 2008 05:20:51 -0800

The answer here depends on whether you're overtime exempt or not. There's no law against paying people more than is required.

In short, unless you're trying to make out a discrimination suit (something for which you haven't given nearly enough information), they can treat you and your co-workers differently as much as they want.

If you're all able to be exempted, the fact that they're paying them overtime is irrelevant -- they can pay overtime to people even when they don't have to. If, on the other hand, you're not exempt, then that is your case (without reference to your co-workers).

That said, I wonder if you wouldn't fall under the "creative professional" exemption from Remy's second link.

In the end, a labor lawyer is going to be able to help you a lot more than we will, and raising the issue with your boss from a "fairness" perspective is more likely to get something taken away from your co-workers than it is to gain you anything you're not legally entitled to.

By: gjc

gjc — Tue, 27 May 2008 05:35:02 -0800

Did you agree to the compensation level when you started the job? Then what changed?