As a project manager (other managers with similar situations are found throughout the company), I am responsible for oversight of projects, including other employees (administration, field management and craft workers) and for hiring/firing. I am currently "salaried" at $40/HR with 40 hours/WK maximum.

The company "exempt" pay structure is as follows:

- Paid no more than 40 hours/week on time record, with 8 hours per day maximum allowable. Salaried Exempt Time Record has a statement as to our receiving all compensation for hours worked, no injuries, etc. (we cannot line out or they will not pay us). We must sign and turn these in weekly. Employees who have refused to cooperate have been "let go".

- All full-time non-field employees (admin. and management) are granted accrued sick and vacation time, but no sick/vacation time is accrued for time over 40 hours/week.

- Hours/days taken as time off are required to be taken from sick time or vacation time; which fund they 'let' you take it from depends on them- if you say you were sick, and turn it in as sick time, they might change it to vacation, etc. They do not like sick time to be used, as the vacation time is payable upon termination. Also, if you run out of hours they make you take days/hours as time off without pay (no negative balance on sick/vacation allowed).

Currently (and for a long time), I have been working day & night from 50-90 hours per week due to the company not having enough resources. The give/take relationship has not existed to date, and both this fact and the hours worked are beginning to devalue the position for me. Are we/am I an exempt employee?

Thanks in advance for your help!

None of what you posted has anything to do with exempt/non-exempt status. That is established by your job duties.

As a project manager (other managers with similar situations are found throughout the company), I am responsible for oversight of projects, including other employees (administration, field management and craft workers) and for hiring/firing. I am currently "salaried" at $40/HR with 40 hours/WK maximum.

The company "exempt" pay structure is as follows:

- Paid no more than 40 hours/week on time record, with 8 hours per day maximum allowable. Salaried Exempt Time Record has a statement as to our receiving all compensation for hours worked, no injuries, etc. (we cannot line out or they will not pay us). We must sign and turn these in weekly. Employees who have refused to cooperate have been "let go".

- All full-time non-field employees (admin. and management) are granted accrued sick and vacation time, but no sick/vacation time is accrued for time over 40 hours/week.

- Hours/days taken as time off are required to be taken from sick time or vacation time; which fund they 'let' you take it from depends on them- if you say you were sick, and turn it in as sick time, they might change it to vacation, etc. They do not like sick time to be used, as the vacation time is payable upon termination. Also, if you run out of hours they make you take days/hours as time off without pay (no negative balance on sick/vacation allowed).

Currently (and for a long time), I have been working day & night from 50-90 hours per week due to the company not having enough resources. The give/take relationship has not existed to date, and both this fact and the hours worked are beginning to devalue the position for me. Are we/am I an exempt employee?

Thanks in advance for your help!

I do have to state the (perhaps) obvious here, but maybe not, since you seem not to be aware of either the legal issues regarding exempt employment, nor common/best practice regarding benefits and compensation (see #5 below). Please don't be offended. You just have some assumptions that are not "real world".

1. It certainly sounds like you would qualify under either the Administrative or Executive exemption and the statements below all reflect that status. As such, with the caveat mentioned in #5, I don't see any legal violations here at all. Your rate of pay would then be $1,600 per week. You're not "salaried at an hourly rate" of XX; those two terms are contradictory in the compensation arena.
http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17a_overview.htm

2. In my over 28 years of experience in payroll and compliance, including many years as a manager with large employers, I have NEVER seen a policy stating that exempt employees had a maximum expectation of 40 hours a week. EVER. Or even, nonexempt; businesses would be ill-advised in making such a statement, since 40 hours per week is sometimes necessary, whether exempt or nonexempt.

3. As an exempt employee, you aren't paid for more than 40 hours per week exactly because you ARE exempt. You aren't being paid for your hours, period. You being paid a guaranteed salary (with very limited exceptions) no matter how many or how few hours you work in a workweek. And, by signing a time sheet, you are not forfeiting any of your rights if you are not paid in accordance with the law. It is a very good business practice to require exempt employees to at least record their work status for each day, for a number of reasons.

4. Again, in my experience, I have NEVER seen a vacation/sick policy that gives credit for more than 40 hours, if that is the expected work schedule. It would be a very expensive policy indeed to include overtime in the base calculation for vacation/sick plans. And again, you're being treated as exempt, and legally so, in my opinion. The hours are irrelevant.

5. I'm not sure what state you're in, but this might ONLY be a problem ("switching out" the time used from sick to vacation) in California. Unlikely, but possible. And it is perfectly legal to dock your salary when you take a full day off for personal reasons, or because of illness or injury (since the employer does provide a sick pay plan) if you have exhausted all your available time off. It is not a good business practice to "allow negatives" in accrual balances.


Now, having said that, I'm sure you're probably getting burned out. I would too. If the employer is not cutting you some slack (for example, not having to charge your time off for a partial day absence due to a personal appointment, for example), that may be insensitive and maybe even petty, but it isn't illegal. Eventually, employees subject to such working conditions (and again, I'm only talking about the number of hours you're putting in) will leave and a good employee will be lost for lack of proper business management.

Have you actually been docked for partial day absences?

Thank you for all your replies. In terms of the time record, they do not want our actual time worked, they require us to write 40 hours (8 hours for each of the five business days) with no inclusions for time over 40/weekends, etc. Essentially, they have salaried us based on a 40 hour week (for their accounting/payroll purposes). Also, any time less than 8 hours worked in a day would either be docked or taken from sick/vacation accrued time. Would that not imply a workweek for an exempt employee to be 40 hours per week?

It would seem that the terms and conditions should be more clearly defined; is there a responsibility (besides us, as employees, to know what we are agreeing to) to define the terms and conditions of salaried-exempt employment? If it is kept gray and liquid, then what is to prevent the employer from abusing the exempt status of employees? From the previous posts, it would seem that the answer is "nothing". Again, many thanks!

In thinking about this, I might look to propose to my employer that, due to the excessive hours, we might do something like:

-de-enroll me from sick/vacation/holiday(?) pay accruals.
-begin accruing comp time based on actual hours worked

Does anyone have any thoughts on effective and California-legal comp time programs?

Would the program then be open to all salaried exempt employees or could it be position-specific? I am thinking that I would rather have time accrued based on actual time worked, and not 1 wk sick/2 wks vacation capped yearly. That way, if I am working "regular" hours, I would receive standard accruals (3 weeks/year, or .05769 days/hour accrued) and if I have to work 80+ hours a week it would be accrued proportionally to that.

If you actually are exempt, comp time is legal but not required (nothing to stop you from asking about it, however).

If it turns out that you are non-exempt, comp time for employees of private employers is illegal in all 50 states.