crowned
01-11-2008, 10:42 PM
Hi- First of all, I'd like to say that I'm very happy I found this forum.
I work as a field engineer and travel around to fix computers at architecture firms. I Install, troubleshoot, and maintain equipment. I also determine what software might work best for them, and I rely on instructions from managers for difficult tasks.
I have a question about overtime. I have worked in the above position in NYC past two years, but have not been paid overtime. My employer wants to reimburse me for my OT worked for the past two years—they agree my position is non-exempt from OT. However, they have suggested that they will use the “fluctuating workweek” calculation to calculate the sum they owe me.
Here is the email we got last week about our back-pay:
“Field Engineers are non-exempt and operate on a fluctuating hours pay schedule, as hours may fluctuate from week to week. In a fluctuating hours structure, the number of hours worked in a particular week is used to calculate that week’s overtime pay for non-exempt employees. Salary covers each hour worked, and an additional 50% of that week’s hourly rate is paid for each hour worked over 40.”
I think I should get time-and-a-half for several reasons:
1. I understand the “fluctuating workweek” is customarily used for seasonal workers who need a constant salary, and is an agreement that the worker will get a stable salary no matter the hours in a particular week (provided there aren’t more than 50 OT hours).
I don’t fall into this category. I work at least 40 hours each week (9-6 each day-mandatory, and I'm expected to stay after if necessary, be on call during the weekends, etc.). I must take vacation if I would like to work fewer than 40 hours, and there is no week during the year when my firm expects me to work fewer than 40 hours, except for holidays. The hours technically fluctuate, but only because I occasionally stay late for emergencies or am called in over the weekend—NOT because the work is seasonal or that I may be needed for fewer than 40 hours on a particular week (I know that the amount the hours fluctuate is not important for the “fluctuating workweek”—a small fluctuation is fine). In fact, on the form I signed when I started my employment, there was a clause which stated that if I “work fewer than 35 hours a week for 3 consecutive weeks, the employee will be transitioned to hourly pay.” This means that my salary is not independent of the number of hours I work—less than 35 hours of work, less than 7/8 of salary...
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2. I have read that that the “fluctuating workweek” method of calculating OT is only acceptable if the employee is aware that the “fluctuating workweek” method is being used.
In my case, I was not aware that it was being used until after the work was complete (2 years of work). I find it doubtful that it is legal for an employer to back pay OT calculated with the “fluctuating workweek” method since applying the calculation retrospectively means the employee could not have known that it was going to be applied—the decision to apply was made after the work was done.
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Adding to my frustrations is the fact that they are claiming that the new OT schedule will motivate them to hire more workers, even though hours of work calculated using the “fluctuating workweek” method get cheaper and cheaper the deeper you get into overtime (rather than having time-and-a-half as an asymptote). It NEVER is cheaper to hire another worker if you already have a salaried employee on the “fluctuating workweek” and it provides no disincentive to employers who are overworking existing employees.
So-- who’s right? My employer or me? Please let me know—their method is going to put only 1/3 the amount of OT pay in my pocket, and my hourly pay will decay every time I put in an hour of OT.
Thanks in advance!
P.S.
Here is the document that I’ve been looking at. Are there others that I should be taking into account (other than the forms that say I’m non-exempt)?
From Part C of DOL form 29 CFR 778.114 (http://www.dol.gov/dol/allcfr/esa/title_29/Part_778/29CFR778.114.htm)- Fixed salary for fluctuating hours.
The ``fluctuating workweek'' method of overtime payment may not
be used unless the salary is sufficiently large to assure that no
workweek will be worked in which the employee's average hourly earnings
from the salary fall below the minimum hourly wage rate applicable under
the Act, and unless the employee clearly understands that the salary
covers whatever hours the job may demand in a particular workweek and
the employer pays the salary even though the workweek is one in which a
full schedule of hours is not worked. Typically, such salaries are paid
to employees who do not customarily work a regular schedule of hours and
are in amounts agreed on by the parties as adequate straight-time
compensation for long workweeks as well as short ones, under the
circumstances of the employment as a whole
I work as a field engineer and travel around to fix computers at architecture firms. I Install, troubleshoot, and maintain equipment. I also determine what software might work best for them, and I rely on instructions from managers for difficult tasks.
I have a question about overtime. I have worked in the above position in NYC past two years, but have not been paid overtime. My employer wants to reimburse me for my OT worked for the past two years—they agree my position is non-exempt from OT. However, they have suggested that they will use the “fluctuating workweek” calculation to calculate the sum they owe me.
Here is the email we got last week about our back-pay:
“Field Engineers are non-exempt and operate on a fluctuating hours pay schedule, as hours may fluctuate from week to week. In a fluctuating hours structure, the number of hours worked in a particular week is used to calculate that week’s overtime pay for non-exempt employees. Salary covers each hour worked, and an additional 50% of that week’s hourly rate is paid for each hour worked over 40.”
I think I should get time-and-a-half for several reasons:
1. I understand the “fluctuating workweek” is customarily used for seasonal workers who need a constant salary, and is an agreement that the worker will get a stable salary no matter the hours in a particular week (provided there aren’t more than 50 OT hours).
I don’t fall into this category. I work at least 40 hours each week (9-6 each day-mandatory, and I'm expected to stay after if necessary, be on call during the weekends, etc.). I must take vacation if I would like to work fewer than 40 hours, and there is no week during the year when my firm expects me to work fewer than 40 hours, except for holidays. The hours technically fluctuate, but only because I occasionally stay late for emergencies or am called in over the weekend—NOT because the work is seasonal or that I may be needed for fewer than 40 hours on a particular week (I know that the amount the hours fluctuate is not important for the “fluctuating workweek”—a small fluctuation is fine). In fact, on the form I signed when I started my employment, there was a clause which stated that if I “work fewer than 35 hours a week for 3 consecutive weeks, the employee will be transitioned to hourly pay.” This means that my salary is not independent of the number of hours I work—less than 35 hours of work, less than 7/8 of salary...
---
2. I have read that that the “fluctuating workweek” method of calculating OT is only acceptable if the employee is aware that the “fluctuating workweek” method is being used.
In my case, I was not aware that it was being used until after the work was complete (2 years of work). I find it doubtful that it is legal for an employer to back pay OT calculated with the “fluctuating workweek” method since applying the calculation retrospectively means the employee could not have known that it was going to be applied—the decision to apply was made after the work was done.
---
Adding to my frustrations is the fact that they are claiming that the new OT schedule will motivate them to hire more workers, even though hours of work calculated using the “fluctuating workweek” method get cheaper and cheaper the deeper you get into overtime (rather than having time-and-a-half as an asymptote). It NEVER is cheaper to hire another worker if you already have a salaried employee on the “fluctuating workweek” and it provides no disincentive to employers who are overworking existing employees.
So-- who’s right? My employer or me? Please let me know—their method is going to put only 1/3 the amount of OT pay in my pocket, and my hourly pay will decay every time I put in an hour of OT.
Thanks in advance!
P.S.
Here is the document that I’ve been looking at. Are there others that I should be taking into account (other than the forms that say I’m non-exempt)?
From Part C of DOL form 29 CFR 778.114 (http://www.dol.gov/dol/allcfr/esa/title_29/Part_778/29CFR778.114.htm)- Fixed salary for fluctuating hours.
The ``fluctuating workweek'' method of overtime payment may not
be used unless the salary is sufficiently large to assure that no
workweek will be worked in which the employee's average hourly earnings
from the salary fall below the minimum hourly wage rate applicable under
the Act, and unless the employee clearly understands that the salary
covers whatever hours the job may demand in a particular workweek and
the employer pays the salary even though the workweek is one in which a
full schedule of hours is not worked. Typically, such salaries are paid
to employees who do not customarily work a regular schedule of hours and
are in amounts agreed on by the parties as adequate straight-time
compensation for long workweeks as well as short ones, under the
circumstances of the employment as a whole
