Hi,

My husband works for (deleted by moderator) as a retail specialist. He goes to various (deleted by moderator) and sets up end caps and displays.

Here is the problem: It seems that they won't pay him for anything worked over 8 hours in a day or anything worked over 40 hours in a week. All they want to pay is 40 hours per week max or 8 hours a day max. He IS NOT a salary-paid worker, but an hourly paid worker. He makes $16.75 an hour, and it even says so on his check.

I assure you that he is totally and completely an hourly paid worker and has been since his employment with the company. The funny thing is, is that there have been times where he's worked less than 40 hours and they had no problem at all not paying him for it. So if he really was a salary worker, he would have been paid for 40 hours regardless.

It seems they want him to be not only a salary-paid worker (even though he isn't!) but also an hourly-paid worker as well. They want whatever is convenient and cheapest for them. They need to make up their minds.

Is this legal? There have been several times where he has had to stay 10 hours because he had so much to do, and he didn't get paid for the other 2 hours of O.T. So he worked for free. Maybe this would fly in a 3rd world country, but this is America.

H-E-L-P

"Hourly" and "Salaried" are just payment methods and do not by themselves mean much about whether or not paid overtime is required. Most payroll systems put an hourly rate equivelent on all paystubs (including those of Salaried Exempt employees), and having an hourly rate on the paystub does not legally make the employee Exempt or Non-Exempt.

The federal rules on Exempt classification can be found on the following website. Take a look and see if any of the classifications appear to apply. I have several question, one pretty obvious, but lets make sure.
- Is your husband legally an employee? Are taxes deducted from his check? Does he get a W-2 at year end? This is probably an "of course" question, but sometimes it actually is not.
- Assuming he is indeed an employee, when you look at the website, look at all of the catagories, but take a hard look at the Outside Sales classification. I have never heard of an Exempt - Outside Sales being paid hourly, but it is not legally impossible. It is also not impossible that the employee is actually being paid Exempt Salaried and the pay stub just looks like he is paid hourly.
- Is your husband ever paid commissions (under that or other names) in addition to base pay? Is his base pay ever referred to as a "draw"?

FYI, the docking rules (reducing salary for time not worked) are very different for Non-Exempt Salaried and Exempt Salaried. The exempt status is the key, and hourly/salaried/commission/piecerates are just the payment basis.

http://www.dol.gov/esa/regs/compliance/whd/fairpay/main.htm

BTW, Arizona law does not require overtime for over 8 hours in a day; only for over 40 hours in a week.

Yes, he is legally an employee, lol.

He doesn't get commission, although he is entitled to quarterly bonuses if he does well in his job. I am not sure what "doing well" entails.

As for the outside sales position classification, he doesn't actually sell anything to anyone. His job is to go to stores and set up ends caps and displays and make signs for the product and make sure things are where the customers will see and buy them. If the product doesn't sell, or even if it does, it's not his problem and he doesn't get punished or docked for it. All he can do is make the display to the best of his ability and hope it sells.

His job title says: Retail Specialist

Pay rate: $670 weekly

However, it also says $16.75 an hour under the "hours and earnings" section and says he worked exactly 40 hours (I'm reading a current pay stub).

But don't let the "$670 weekly" fool you. Before he got promoted, it would always say $580 weekly and then also say $14.50 x 40 hours. Before he was promoted he was a customer service rep at their call center. I think putting whatever they make weekly is just something they've always done.

Keep in mind that most payroll systems out there will generate an hourly rate and default to 40 hours in a week no matter how the employer designates the employee. That doesn't indicate they are paid on an hourly basis.

If your husband is designing these displays, he might qualify as exempt. If he is just stacking the products on the shelves, he would not.

He sounds like a Merchandising Specialist to me. That's the kind of jobs I have done for the past 3 years and I have never been exempt.

Dawn