Wife's work doesnt pay overtime.
October 10, 2014 5:54 PM Subscribe
Wife's work doesn't pay overtime.
I live in Illinois. My wife got a job at a small office a few months ago. She is paid on an hourly basis. She is working a ton of overtime because they have gotten a lot of orders. It is a small company owned by her boss, which is in turned owned by a large German company.
They pay her on a monthly basis, so her hours are something like 200 hours for the month. No overtime. "We don't pay overtime". Is this legal? What are our options? She doesn't want to endanger her job. I feel like she should wait until her job ends (either she quits or gets laid off or whatever) and then sue the company for back pay. That's the only way I can think of to collect the money without getting fired.
I live in Illinois. My wife got a job at a small office a few months ago. She is paid on an hourly basis. She is working a ton of overtime because they have gotten a lot of orders. It is a small company owned by her boss, which is in turned owned by a large German company.
They pay her on a monthly basis, so her hours are something like 200 hours for the month. No overtime. "We don't pay overtime". Is this legal? What are our options? She doesn't want to endanger her job. I feel like she should wait until her job ends (either she quits or gets laid off or whatever) and then sue the company for back pay. That's the only way I can think of to collect the money without getting fired.
It depends, is she exempt? For this, you can read "exempt" as "exempt from overtime payment". Most salaried, white collar jobs are exempt, most low-paid, hourly jobs are non-exempt. Then there is the middle where you have to go read the rules. While hourly pay is often non-exempt, they are not actually synonymous.
Here's one page that describes whether or not a job is exempt. You can do some googling for others.
If she's not obviously exempt based on the "tests", you may wish to consult with an employment lawyer now to get an idea of your options, as well as a professional opinion on her status.
If she's not getting paid enough for the work she's doing, though, she should definitely be looking for a new job, regardless.
posted by brainmouse at 6:06 PM on October 10, 2014 [7 favorites]
Here's one page that describes whether or not a job is exempt. You can do some googling for others.
If she's not obviously exempt based on the "tests", you may wish to consult with an employment lawyer now to get an idea of your options, as well as a professional opinion on her status.
If she's not getting paid enough for the work she's doing, though, she should definitely be looking for a new job, regardless.
posted by brainmouse at 6:06 PM on October 10, 2014 [7 favorites]
This could go either way without knowing all of the details. You'll both want to look at the Illinois Department of Labor Fair Labor Standards Act exemptions, which detail who is exempt from overtime and who is not. If the company only hires employees in exempt categories, it is technically possible that they could legally have zero staff members who are paid overtime.
posted by eschatfische at 6:11 PM on October 10, 2014 [1 favorite]
posted by eschatfische at 6:11 PM on October 10, 2014 [1 favorite]
Is this legal?
It doesn't matter.
What are our options?
There is fundamentally no way to sue your employer without endangering your livelihood. Employers - current and future - do not especially enjoy having employees that sue them, as they are too high a liability. It is illegal to retaliate against an employee for reporting and/or litigating illegal working conditions. Don't think for a second that means employers don't do it. If you pursue legal activity against her current employer, you are jeopardizing her future employability.
posted by saeculorum at 6:17 PM on October 10, 2014 [12 favorites]
It doesn't matter.
What are our options?
- Find a new job.
- Accept it.
- Sue her employer.
There is fundamentally no way to sue your employer without endangering your livelihood. Employers - current and future - do not especially enjoy having employees that sue them, as they are too high a liability. It is illegal to retaliate against an employee for reporting and/or litigating illegal working conditions. Don't think for a second that means employers don't do it. If you pursue legal activity against her current employer, you are jeopardizing her future employability.
posted by saeculorum at 6:17 PM on October 10, 2014 [12 favorites]
Most salaried, white collar jobs are exempt,
As I understand it, this was so abused (especially in tech companies, I think?) that it hasn't held up in court the way it used to, so it's still worth investigating.
posted by small_ruminant at 6:21 PM on October 10, 2014
As I understand it, this was so abused (especially in tech companies, I think?) that it hasn't held up in court the way it used to, so it's still worth investigating.
posted by small_ruminant at 6:21 PM on October 10, 2014
Everyone here is right on target.
An employer in the US cannot just decide "We don't pay overtime here" as if it were a voluntary benefit. Overtime is mandated by federal (and often state) law under specific circumstances. Your wife needs to read up on something called the Fair Labor Standards Act, the federal law establishing and governing overtime. Here's a snippet:
"The federal overtime provisions are contained in the Fair Labor Standards Act (FLSA). Unless exempt, employees covered by the Act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay."
As others have said, the trick is to determine whether your wife's job is correctly classified as "exempt" or "non-exempt". We cannot do this for her, not enough info. Classifications depend on factors such as salary rate and specific job duties. The DOL website I linked has tools to help you do this.
Further, in March of this year, President Obama directed the DOL to revisit these classifications with an eye towards getting more white-collar workers their OT. There is a lot of information out there on that as well.
Saeculorum hints at the greater difficulty here. You and your wife can figure out if her job description falls under exempt or non-exempt. That's the easy part. Assuming she IS entitled to overtime under the FLSA, what then?
It depends on what her objective is - which I assume is fair pay for hours worked. Now, not later in some EEO settlement.
Since this is a small company, I'm guessing that there aren't a lot of internal resources for her like a payroll or HR department (no HR bashing please - yes, I work for the company that pays me. No, that doesn't make me evil incarnate. Part of my job is to see that employees are classified correctly and paid accurately to keep us out of trouble).
If she is on good terms with the boss/owner, she could request a meeting to ask about this overtime policy. To ask questions, not storm the castle. Tell me more, why don't you have to pay OT? Then, if everything is still friendly, she could inquire about her own job classification.
Whether that's a good idea or not depends on facts that I don't have about her boss, the corporate owners, etc.
Or she could look for a job that actually pays her for hours worked. Her current arrangement sounds awful.
Best wishes!
posted by falldownpaul at 9:22 PM on October 10, 2014 [4 favorites]
An employer in the US cannot just decide "We don't pay overtime here" as if it were a voluntary benefit. Overtime is mandated by federal (and often state) law under specific circumstances. Your wife needs to read up on something called the Fair Labor Standards Act, the federal law establishing and governing overtime. Here's a snippet:
"The federal overtime provisions are contained in the Fair Labor Standards Act (FLSA). Unless exempt, employees covered by the Act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay."
As others have said, the trick is to determine whether your wife's job is correctly classified as "exempt" or "non-exempt". We cannot do this for her, not enough info. Classifications depend on factors such as salary rate and specific job duties. The DOL website I linked has tools to help you do this.
Further, in March of this year, President Obama directed the DOL to revisit these classifications with an eye towards getting more white-collar workers their OT. There is a lot of information out there on that as well.
Saeculorum hints at the greater difficulty here. You and your wife can figure out if her job description falls under exempt or non-exempt. That's the easy part. Assuming she IS entitled to overtime under the FLSA, what then?
It depends on what her objective is - which I assume is fair pay for hours worked. Now, not later in some EEO settlement.
Since this is a small company, I'm guessing that there aren't a lot of internal resources for her like a payroll or HR department (no HR bashing please - yes, I work for the company that pays me. No, that doesn't make me evil incarnate. Part of my job is to see that employees are classified correctly and paid accurately to keep us out of trouble).
If she is on good terms with the boss/owner, she could request a meeting to ask about this overtime policy. To ask questions, not storm the castle. Tell me more, why don't you have to pay OT? Then, if everything is still friendly, she could inquire about her own job classification.
Whether that's a good idea or not depends on facts that I don't have about her boss, the corporate owners, etc.
Or she could look for a job that actually pays her for hours worked. Her current arrangement sounds awful.
Best wishes!
posted by falldownpaul at 9:22 PM on October 10, 2014 [4 favorites]
I don't know whether or not your wife is exempt. If she isn't, there are plenty of lawyers who will be happy to help her sue her employer. I would not have a friendly meeting with her boss discussing overtime. He's already let you know that he is unethical. I would, as you wrote, wait until she moves on and then sue.
posted by rdr at 9:29 PM on October 10, 2014
posted by rdr at 9:29 PM on October 10, 2014
Would like to add: there are a lot of state and federal employment laws and there are a lot of employers in non-compliance with those laws. Some of these employers know what they are doing (unethical). And some don't (inept). Not every bad employment situation is created by malicious intent.
We don't know anything about this employer's intent. It's certainly possible that the owner/operator of a busy small business knows less about FLSA regs than he/she should. I've seen this before. Or this could be a blatant and willfull wage and hour violation. Either way, if your wife is entitled to ot, she has options -- just none of them ideal.
Keep working until the job ends, then sue - could she put up with that, and how long are we talking here? Years? Will she have timesheets and payroll records and a job description to back her claim up? Even if she does, there's no guarantee she would win. What sort of legal defense can this German parent company afford?
Engage in a dialogue with her employer and risk antagonizing her boss - she is protected by law from retaliation over a wage hour dispute, but that does not make it fun.
Again, if she is on good terms with a generally decent boss, she may want to start with a friendly conversation. But there are a lot of ifs in that scenario and I'm not saying it's the way to go. She would have to weigh the risks vs the likelihood of reward.
posted by falldownpaul at 10:39 PM on October 10, 2014
We don't know anything about this employer's intent. It's certainly possible that the owner/operator of a busy small business knows less about FLSA regs than he/she should. I've seen this before. Or this could be a blatant and willfull wage and hour violation. Either way, if your wife is entitled to ot, she has options -- just none of them ideal.
Keep working until the job ends, then sue - could she put up with that, and how long are we talking here? Years? Will she have timesheets and payroll records and a job description to back her claim up? Even if she does, there's no guarantee she would win. What sort of legal defense can this German parent company afford?
Engage in a dialogue with her employer and risk antagonizing her boss - she is protected by law from retaliation over a wage hour dispute, but that does not make it fun.
Again, if she is on good terms with a generally decent boss, she may want to start with a friendly conversation. But there are a lot of ifs in that scenario and I'm not saying it's the way to go. She would have to weigh the risks vs the likelihood of reward.
posted by falldownpaul at 10:39 PM on October 10, 2014
Yes, it's legal if her job is exempt. Is she an administrative assistant?
posted by DarlingBri at 4:21 AM on October 11, 2014 [1 favorite]
posted by DarlingBri at 4:21 AM on October 11, 2014 [1 favorite]
As a practical matter, how much do you want/need the job? If you pursue back pay for overtime already worked, your wife may lose the job altogether. In the real world, some employers just aren't going to let the govt tell them what to do.
posted by SemiSalt at 5:38 AM on October 11, 2014
posted by SemiSalt at 5:38 AM on October 11, 2014
This thread is closed to new comments.
posted by muddgirl at 6:04 PM on October 10, 2014