Hello all, my name is Al and I'm from Puerto Rico. I've been trying to find any useful information or laws regarding my situation.

First, I want to inform people that may not be aware that Puerto Rico is a US-territory and as such *all* federal laws and regulations apply in PR. We do have our own DOL here that also have regulations but similarly like in the States those laws are not above federal laws.

My situation is quite interesting in my opinion, I work in the Information Technology industry and I work as a junior level systems administrator…. Some of my regular duties include the administration and support of our servers (File and Printing servers, application servers, IP telephony servers and others) and also serve as support for our users of the various network services we have in have to make things easier for them.

Before getting this job I worked on another department and I was basically a Technical Support representative for the company services (It’s an ISP) and I was being paid on an hourly basis and hence overtime pay if I was required to stay longer or work an off-schedule day… which was entitled for the overlapping pay if it applied and all the other goodies.

So far so good, well, to my luck they opened a position in the IT department and of course, this meant a career advance for me… so I applied for it and got the job… they did some paperwork, filled a “department transfer sheet” and give me a little rise in pay. Good.

My family have their own businesses and they asked me one of the many times I had to stay working late if I was an “exempt employee” I didn’t really know what was an exempt employee until I researched a bit... to my surprise I’m a little below the pay I’m supposed to get as an exempt employee but I don’t have a clock card or anything, just a “time sheet” that when I asked if I should put all the hours I work they say I shouldn’t because that’s the exempt employee sheet and that it makes no impact in my paycheck, I get to the office pretty much at any hour I want, of course it has to be a reasonable hour for the company and if I have to stay late, well, I have to stay late.

Over the past year and a half I haven’t been paid overtime ever. So, I asked my supervisor if I was exempt or non-exempt, to my surprise his answer was that we all are exempt in the IT department and I told him about my pay, that it’s below what the FLSA states, etc, etc. He looked a bit surprised because he didn’t have any knowledge of this and told me he was going to work with the director of the department and with the HR department to fix this as soon as possible. Good. That’s what I expected them to do, so it’s OK.


Now what I’m wondering if there’s any law or something that specify if I’m entitled to a retroactive payment of all the hours I worked overtime without pay while I was below the pay grade I was supposed to be (exempt-employee pay grade). How these kinds of situations are are handled? How is the employer responsible or what’s my responsibility in all this? Again, my main concern is about the retroactive payments of all those undocumented hours, but any other information you can provide it’s obviously very welcome.

Thanks a lot!
-Al

We know that Puerto Rico is a U.S. Territory (we're not second-graders) and we also know that the FLSA applies in Puerto Rico.

See the following federald DOL Opinion Letter. Although opinion letters are binding only on the employer requesting them, such letters do indicate the DOL's stance on a particular issue. If your duties are similar, then it's likely that you are nonexempt and are due overtime pay when you worked over 40 hours in a workweek (under federal law). And even if your duties DO meet the criteria for exempt status, if your weekly salary is less than $455 U.S. then you wouldn't meet the salary requirement, so you would default back to nonexempt anyway.
http://www.dol.gov/esa/whd/opinion/FLSA/2006/2006_10_26_42_FLSA.pdf

However, Puerto Rico overtime is required as described here.
http://www.uschamber.com/sb/library/P98/P98_05_4053_PR.asp

Therefore, in order to get the maximum overtime you may be due, you will have to file a claim for unpaid overtime with the Puerto Rico Dept. of Labor. You have nothing to lose by filing the claim. I do not know how far back you can go with a claim in Puerto Rico. The federal DOL will take claims back 2 years and three years if the violation is found to be willful.

However, "pay grade" has nothing to do with it. Exempt or nonexempt is the determining factor.

[QUOTE=Pattymd;978363]We know that Puerto Rico is a U.S. Territory (we're not second-graders) and we also know that the FLSA applies in Puerto Rico.

I'm really sorry, really. I just find myself very often explaining my nation status and relationship with the USA. So, in short, I wasn't really trying to make anyone look dumb, really! ;D

Anyways, thank you very much for your reply. So, it is possible to get all that overtime money paid retroactively. At least that is good news. What makes me worry, is that I don't have any way to prove I worked overtime, aside from a few emails I've had to send when I'm leaving late or the buildings cameras there's nothing. All the time sheets I fill say 40 hours, and I honestly work probably a minimum of 50 hours weekly, sometimes I have to skip lunch. I'm on-call so, I've had to stop by work and work some hours during the weekends too every now and then, that's without counting the time I've had to work from home, I mean, who is the one that has to prove anything? the employer or myself?

It's not like they don't know, my supervisor has been with me when things get crazy till late and he's well aware I almost always work 10 hours daily.

But you know, I try to make sense out of my situation, and I have nothing concrete to prove myself.

I would suggets you try your claim in the federal DOL, as well as the local DOL. For the federal DOL the burden of proof in on the employer, that you did not worked the overtime.

Caribbean District Office
US Dept. of Labor
Wage & Hour Division
7 Tabonuco Street
San Patricio Office Center
Suite 402
Guaynabo, PR 00968
(787) 775-1924



Un Jibaro de Mayaguez

I would suggets you try your claim in the federal DOL, as well as the local DOL. For the federal DOL the burden of proof in on the employer, that you did not worked the overtime.

Caribbean District Office
US Dept. of Labor
Wage & Hour Division
7 Tabonuco Street
San Patricio Office Center
Suite 402
Guaynabo, PR 00968
(787) 775-1924



Un Jibaro de Mayaguez

Useful information, so, I don't have to prove anything it's THEM that have to prove that I only worked 40 hours. So, how valuable are those "exempt time sheets" that I have to fill weekly? Do they have any worth at all for the Federal government?

Por aqui otro de Luquillo.

If you only reported 40 hours on your time sheet, even though you worked more, that's common for exempt employees, and it MIGHT make it a tad more difficult. The fact that there may be witnesses to your time, badge in/out times, cameras, etc. may help, although electronic evidence may no longer be available.

Generally speaking, however, these things usually are tilted to the employee's benefit, if it is at all logical to do so.

If you only reported 40 hours on your time sheet, even though you worked more, that's common for exempt employees, and it MIGHT make it a tad more difficult.

The DOL might decide to audit the company, interview all similar (maybe even all) employees and get estimates on the hours worked.

Since this only goes back a year and a half, the statute of limitations is not yet a problem.

The DOL might decide to audit the company, interview all similar (maybe even all) employees and get estimates on the hours worked.

Since this only goes back a year and a half, the statute of limitations is not yet a problem.

Agree with the interviews and that would help the OP's case.

All I was saying about electronic evidence is that security tapes and badge in/out records aren't necessarily kept that long; especially the latter, since such records would not be the writing of record for time worked, the time sheet would be since it's very likely signed by the employee.

Thank you all people for sharing your useful information with me, I really appreciate it.

Regards,
-Al