I have been working for a Louisiana non-profit, since February of 2003, writing Ebay ads. Less than a year after starting, my status was changed from hourly to salaried (non-exempt). I get paid $11.50 an hour for forty hours a week, but I have the possibility to earn a bonus if I can produce more than 100 auctions a week. I welcomed the change in my employment status to salaried because the more hours I work, the bigger my bonus can be. Since no overtime was allowed, making a bigger bonus was my only avenue to a bigger paycheck. Also, I live 75 miles away so it made more sense to work more hours per trip to make my gasoline bill go further. I didn't understand the meaning of exempt and non-exempt at the time. I just recently discovered the difference, and am wondering--am I owed back wages for all the overtime I worked? I would like to know for sure before I do anything.

I have been working for a Louisiana non-profit, since February of 2003, writing Ebay ads. Less than a year after starting, my status was changed from hourly to salaried (non-exempt). I get paid $11.50 an hour for forty hours a week, but I have the possibility to earn a bonus if I can produce more than 100 auctions a week. I welcomed the change in my employment status to salaried because the more hours I work, the bigger my bonus can be. Since no overtime was allowed, making a bigger bonus was my only avenue to a bigger paycheck. Also, I live 75 miles away so it made more sense to work more hours per trip to make my gasoline bill go further. I didn't understand the meaning of exempt and non-exempt at the time. I just recently discovered the difference, and am wondering--am I owed back wages for all the overtime I worked? I would like to know for sure before I do anything.
You say that no overtime was allowed, and then ask about back wages on overtime worked. If it wasn't allowed, then when did you work it?:confused:

Right - your post isn't real clear in regard to the overtime.

The fact that overtime was not allowed is not relevant to determine if the overtime is owed. If the proper classification determination as to exempt or non-exempt is made on the particular employee and the results is that non-exempt is the applicable classification, then, overtime pay is due to such employee regardless if the overtime was or was not authorized by the employer.

ArmyRetCW3 has hit the nail on the head. They supposedly put me on salary to let me work as many hours as I wanted, without paying me overtime, yet I have discovered that I my status has been non-exempt. Once I became salary, I didn't have to punch a time clock, or keep track of my time in any way. About a year ago, the executive director told me to start keeping a time log so she could make sure I was working at least 40 hours a week--this made me bristle considering I rarely work less than 46 hours a week. But because of that log I now have records of all the overtime hours worked for the last year. My question again...using those logs as verification for hours worked...do I have a case for backwages earned? And does it matter that the company I work for is a non-profit?

Thanks for the replys!

http://www.dol.gov/esa/regs/fedreg/final/2004009016.htm

This site should help you determine whether you should be considered exempt or non exempt salaried employee. There is a number you can call if you have any questions. Good luck to you!! I see you said in your post that you found out you are considered non exempt, if you know this for sure, then you will not need to look at this link, if you want verification of why you are considered non exempt, this site will tell you.

Thanks for the link, Turbowray, I will check it out. On my check stub it states that my classification is "Salary (non-exempt)". I looked back on all my old check stubs, and I have been under this classification since I was taken off of hourly status. But my original question is still--am I legally owed back wages?

Thanks to all!

Here's another question...if I file for backwages can I be fired? Also...if I am owed backwages how long--on average--does it take to get these monies?

Thanks!

Here's another question...if I file for backwages can I be fired?

Technically no. Practically, maybe. Most employment is At Will, meaning employers do not need a good reason to legally terminate employment. If your employer fires you after you file a wage claim, they will doubtlessly claim an unrelated reason for the firing. Presumably you would then file a wrongful termination claim based on the wage claim, and then both you and your former employer would get to tell your stories to a judge or administrative authority, who would decide whose story they like best. I am not saying yes or no on filing your wage claim. I am saying that there is a reason that employees who were otherwise already terminated are much more likely to file a wage claim then employees who still have a job to lose.

I am going to leave your other question to someone who knows more about the subject then I do.

Thanks for the input, DAW. That's pretty much what I thought. I am going to file and let the chips fall where they may. That's a lot of money and this is not such a great job after all. I have stuck with it so long because I like the work, and--believe it or not--I like the long drive (but the price of gas has pretty much taken the joy out of the drive). The boss has disrespected me more and more over the last few years, and I'm about sick of it. The last snub being when she gave a promotion I should have been offered, to someone who had only been there 2 weeks and had no experience--basically making that person my boss.

Anyway...thanks!

Let me throw a wrinkle into all of this.

It is a given that the OP's pay stub says "salaried, non-exempt," but the company has been treating him as salaried, exempt.

The base salary of $460 a week ($11.50 x 40 hours) is just over the minimum salary required for exempts and he could well meet the test for the Administrative Exemption.

Are there instances where the OP worked less than 40 hours? If so, what happened to the salary in those cases? If the company docked pay (using available PTO is not docking), then it has sealed the case against itself, but if the salary has been kept whole, then the jury is still out on whether or not the OP could be legitimately classified as exempt.

Thanks for the response, ScottB!

I have looked at the criteria needed for exempt vs. non-exempt, and I don't even come close to matching any but the weekly amount of $460.

As far as missing work, if I miss a whole day then my PTO is taken or I make it up by working longer hours during the rest of the pay period, or the next pay period. In no instance has my salary stayed "whole" if I work less than 40 hours without having PTO in reserve, but I normally work so many hours that that rarely happens.

So does my case sound strong for payment of back wages?

Thanks to all!

I don't even come close to matching any but the weekly amount of $460.

You come up with the ads for the company. That counts under the Administratiive Exemption. The big question would be about how much discretion and independent judgement you are allowed in your job. As an employer, I would feel more comfortable making you non-exempt and pay overtime (which I would try to limit, even if it meant bringing someone else on board).

As far as missing work, if I miss a whole day then my PTO is taken or I make it up by working longer hours during the rest of the pay period, or the next pay period.

Either way is legal for an exempt employee. Non-exempts cannot make up time in another work week.

In no instance has my salary stayed "whole" if I work less than 40 hours without having PTO in reserve, but I normally work so many hours that that rarely happens.

If you worked any part of a day, had no PTO available, and were docked for the time absent, your employer treated you as non-exempt.

Thanks, ScottB!
Here's another question that has occurred to me--since I have been on the books for the last several years as salaried (non-exempt)--is the company liable for backwages owed me even in the non-exempt status turns out to be a mistake?

Thanks again for all your input!

No, if the company has been treating you in all ways as exempt and if you can be legitimately classified as exempt, the company owes you nothing for any overtime worked.

If you were not legitimately classified as exempt, then backwages for two years. Three if the DOL finds willful misconduct on the part of the company.

I truly appreciate all your info, ScottB! I don't want to think that this company I work for is willfully doing anything illegal, but I'm beginning to wonder. The reason all this has come to my attention last Friday is as follows...In a previous post on this same thread I mentioned that my boss promoted an employee over me who had been at the company only two weeks. No experience, but with a degree--in Anthropology! Anyway, this new employee (who is now my immediate supervisor) volunteered her time for an event scheduled over the weekend. The finance manager (who is in charge of making employee designations, as far as I understand) was in the room where I work talking to my new supervisor about the weekend event. I really wasn't paying attention to what they were saying until I heard the new employee (my new boss) exclaim, "Oh, I didn't think I would get overtime since I'm on salary!" At that point my attention went on high alert and I heard the finance manager respond: "Yes, but you're non-exempt which means you can get overtime." We had just received our check stubs, so I looked at mine and I saw I was also classified as salary (non-exempt). So the finance manager is obviously aware of what non-exempt means, and since I have been filling out a time log for at least a year, they can't say they didn't know I was working over forty hours a week. No one has ever come to me and told me not to; if they had, I would have stopped.

Ignorant or intentional?

From an earlier post of yours

They supposedly put me on salary to let me work as many hours as I wanted, without paying me overtime, yet I have discovered that I my status has been non-exempt. Once I became salary, I didn't have to punch a time clock, or keep track of my time in any way. About a year ago, the executive director told me to start keeping a time log so she could make sure I was working at least 40 hours a week

Seems the intent was to make you exempt and it could be that folks aren't communicating with each other.

You could go to your immediate supervisor with pay stub in hand and just ask why you don't get overtime if you are, as shown on the stub, "salaried, non-exempt."

Go from there.

I've had to delete Turbowray's post above. Since the copywrite information in the material she cut and pasted specifically stated that it could not be copied without consent, and since I very much doubt that she had such consent, I had no choice.

In future, I REALLY wish people would post links to material instead of cutting and pasting it. It would make copywrite issues very much easier.

Well, I took my check stub to my supervisor and--very nastily--she said, "It's supposed to be EXEMPT...I'll get that changed immediately!"

We have a time service do our payroll...can she just call up and change my status like that? How do I find out for sure what category I fall under? I've looked at all the criteria necessary for classification and I don't think I fall under exempt...however much they want me to. Who can tell me for sure? Do I have to consult a labor law specialist...or lawyer?

Thanks!

I've had to delete Turbowray's post above. Since the copywrite information in the material she cut and pasted specifically stated that it could not be copied without consent, and since I very much doubt that she had such consent, I had no choice.

In future, I REALLY wish people would post links to material instead of cutting and pasting it. It would make copywrite issues very much easier.

Thank you for covering my butt, I did not notice, but will pay more attention to the very important detail of copywrites rights! Sheesh, I feel like a moron lol!

Well, I took my check stub to my supervisor and--very nastily--she said, "It's supposed to be EXEMPT...I'll get that changed immediately!"

We have a time service do our payroll...can she just call up and change my status like that? How do I find out for sure what category I fall under? I've looked at all the criteria necessary for classification and I don't think I fall under exempt...however much they want me to. Who can tell me for sure? Do I have to consult a labor law specialist...or lawyer?

Thanks!

The Department of Labor, as stated above. Please talk with them, and they will tell you if you should file a wages claim. They are the ones who determine who is right or wrong here, and will make sure you get your back wages, if you have been improperly labeled on your pay stubb. Good luck hon!

Here is what I found from the louisiana's Department of Labor (or thier version of it).

Louisiana has no wage laws concerning overtime, minimum wage, or the regulation of salaried employees. The United States Department of Labor's (USDOL) Wage and Hour Division enforces the Fair Labor Standards Act regulating minimum wage, overtime and salaried employees. Further information concerning these matters may be found at the WH division of the USDOL Web site.


Here is the USDOL web site:
http://www.dol.gov/dol/topic/wages/index.htm

Thanks for the response, Turbowray! I will contact the DOL and see whats what. I don't want anything that I'm not entitled to...but at the same time, I want whatever I have legally earned. I'll let everyone know what happens.

Thanks again!

Thanks for the response, Turbowray! I will contact the DOL and see whats what. I don't want anything that I'm not entitled to...but at the same time, I want whatever I have legally earned. I'll let everyone know what happens.

Thanks again!

Thanks for the promise to let us know what happens, we like to hear outcomes, as well as try to help, then we also learn from those results!! Good luck hon!!

Here's a new rub to my continuing saga...
I just talked with a friend who used to work where I work. He had the exact same job...Ebay Poster. I asked him to look at his check stubs and see what he was classified as. Guess what? He was classified as non-exempt also! I could understand making one mistake...but having both us classified as non-exempt doesn't sound like a mistake. It gets even stranger...

I talked to another friend who is still working at my company...he is a warehouse supervisor. I knew the company had moved him to salary after Huricane Katrina, so I asked him to look at his stub and see what classification they had him under. He is still classified as HOURLY! He doesn't punch a time-clock any more, or fill out a time sheet. He was as shocked as I was. What the heck is going on?

How do we know what's going on? Maybe the company is confused about the criteria for exempt status. Maybe the pay stub is wrong. Maybe they're ignoring the law. Who knows?:confused:

Thanks for the response, Pattymd, but that question was basically rhetorical.
:)

Thanks for the response, Pattymd, but that question was basically rhetorical.
:)

So was my response. ;)

Rhetorical answer to a rhetorical question...gotcha. :D

Update:

I have contacted the DOL's Wage and Hour Division through their website and am awaiting a reply. I have gone over the criteria for Administrative Exemption--the only category that I could possibly fall under--and of the 3 criteria: I definitely am covered by the first--I make $460 a week; I might be covered by the second--I write Ebay ads--advertising is listed, although I don't know if Ebay auctions are technically what is meant by "advertising"; but the third I definitely am NOT covered by--I don't make any kind of independent decisions that have important influence on the company in any way at all.

If I am reading correctly, I have to match ALL 3 criteria to be salary exempt. Is this correct, or am I missing something?

Thanks!

That is correct.

I'm not surprised about the variations in pay at all particularly if you have an outside company doing payroll.

Frankly, exempt/nonexempt salary/hourly is one of the most understood areas for small businesses. Its not that they are al trying to avoid paying overtime in a shady fashion (altho some are) but many honestly think that if I pay a salary that is the same thing as exempt.

You can make all kinds of changes within the company but unless its communicated to the payroll company, nothing gets changed. No one probably thought of notifying the payroll company.

Thanks! Now I feel more sure of myself.

Have a great weekend everyone!!

Well, I've left messages 3 times at the phone number for the Wage and Hour Division, New Orleans Office, and still no response. Does anyone know how long it usually takes for a response? Should I keep leaving messages until I get a response, or just wait? I was issued a case number in response to an initial email query, and I Leave the case number with each message. Just wondering if anyone here has had experience with this process.

Thanks!