Thanks in advance for the help... I also apologize for the length this may end up being...

I work for a small technology reseller (approx 40 -EEs) in WI and am salary + commission (commission makes up approx. 30% of my income). I am in sales and my base salary exceeds $455/weekly.

I never work fewer than 40 hours per week (usually 50), but am never paid for actual hours worked. There is an AM sign in sheet, lunch sign in/out sheet, and you must sign out if leaving before 5:00 PM. No timeclock nor sign out sheet is available if you work until, or after, 5:00 PM). NO effort is made to record actual hours worked, or ending work time (if after 5:00).

In addition, any time missed between 8:30-5:00 (excluding lunch), must be made up with no more than 2 hrs of "flex" time over every 2 week pay period. If you exceed the 2 hrs of "flex" time in any pay period, you must use personal time (if you have already accrued it), vacation time (if you have it available) or get your salary docked if no vacation or personal time is available.

Make up (they call it "flex") time must be supervised by the VP of sales to ensure time is actually made up, regardless if it is apparant that 40+ hours were worked in that week.

This includes time missed work due to documented illness. No paid time off is specifically allocated for use for missed time due to illness.

Personal time does not accrue until after 90 days of employment, and then at the rate of 4 hours per calendar month worked. No vacation time is earned in year one of employment.
It is common for employees to have a deduction of salary for illness in the inital year of employment.

One final example..... My company was closed July 3rd due to anticipated slow business, and we were faced with using personal time, vacation time (which I am not eligible for yet), on not being paid (my only choice) for the time missed due to management's decision to close shop. It was not possible to work, even if we wanted to. We were notified less than 2 business days before the 3rd, that we would not be able to work that day.

Here are my main questions....
1. Shouldn't I be considered non-exempt and be eligible for overtime pay?
2. Should I be concerned about sickness pay policy?
3. Shouldn't I be paid for July 3rd?
4. Should I consider filing a complaint with DOL, get legal counsel, etc. since HR dept (owner/CEO of the company) is unresponsive and will not budge on his position?

I believe labor laws are being violated to some degree and I'd like your expert opinion before taking my next step. I hope I included enough (and not too much) information to paint an accurate picture.

Thank you very much.

1. Your FLSA classification is determined based on your "primary" job functions not your job title. Here is a link that reviews what DOL considers to be exempt: http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17a_overview.htm. The answer to your questions really is dependent on if you are exempt or non-exempt. The answer will differ based on this answer. Are you able to confirm your FLSA classification with your boss or HR?

2. PTO (i.e. vacation and sick time) exists to cover for time missed from work. This is not generally addressed under law. And where it is, it only says that employers must follow their own policies. I suppose your concern is that are having trouble meeting the "flex" time as defined under your company's plan. If scheduling is a problem, I'd suggest discussing further with your boss. Other options may exist that you have not explored.

3. The answer to this questions will differ dependent on your FLSA status. Under both cases, the employer may require that PTO be used for time missed. If you are non-exempt, the employer could require the day be taken off with no pay. If exempt, you are guaranteed your salary for any week which you do work (with very few exceptions). The employer could require that you use PTO; but if no PTO was available, you should still be paid your regular salary.

4. DOL would be an option if wage and hour regs are violated. We are not 100% sure that's happened yet. The first step is finding out your FLSA classification. If you are unclear or cannot get this information from your boss, you are welcome to contact DOL for a determination on your FLSA classification. This is your starting point to finding your answers.

Thank you...

Here is what I based my opinion about being non-exempt from...... The owner of the company (who is also the HR dept) says that all employees are Administrative, thus Exempt. My only job function is to sell software etc... based on the example shown below, I think it's obvious I should be non-exempt.


http://www.dol.gov/esa/regs/compliance/whd/fairpay/faq_PF.htm
5)
Question: Are inside sales employees entitled to overtime?
Answer: Yes. Overtime protections are strengthened for inside sales workers.
The final rules strengthen overtime rights for inside sales employees. First, in the final rule’s preamble, the Department expressly states that it “does not have statutory authority to exempt inside sales employees from the FLSA minimum wage and overtime requirements under the outside sales exemption.” 69 Fed. Reg. at 22162. Second, under the administrative exemption, the final rules include an example protecting the overtime rights of inside sales employees: “[A]n employee whose primary duty is selling financial products does not qualify for the administrative exemption.” § 541.203(b).


Here is the info I'm concerned about with the sick time. There is no sick pay policy at my company...


http://www.dwd.state.wi.us/er/labor_standards_bureau/publication_erd_13109_p.htm

Can the employer make deductions from salary if the employee is sick?
Yes, but only if the deduction is made in conjunction with a bona fide sick pay policy that provides payment for absences that occur because of illness or accident. If the employer has a sick pay policy, but the employee is not eligible for benefits under the policy for the first 90 days of employment, the employer may deduct for full days of absence due to illness during that first 90-day period. If the policy offers five sick days per year and the employee has used those days, deductions may be made for full days of absence due to illness after the sick pay has been used.

I agree it appears you have a case for being defined as non-exempt. Ultimately it is what DOL thinks that matters. It may be worth a phone call to DOL and get their determination on this. FYI! DOL has a reputation to not respond timely; so don't get dismayed if you do not get a speedy response.