jaghf221
02-06-2009, 08:15 PM
I am an ultrasound tech at a small community hospital in Illinois and they refuse to pay overtime pay. They tell me that I am salaried and that call pay and overtime pay is figured into my salary. When originally hired I was told that if I work overtime that I can just take off early another day to even things out. Since hiring on I have had multiple battles with the administration over leaving early to make up for overtime. Last week I left four hours early to make up part of the eight hours of overtime I had the week before and administration tried to force me to take 8 hours of vacation time to cover that day even though I worked half the day and had OT the week before. I also am not paid to be on call and I am on call 26 weeks a year normally. Things have been somewhat tolerable until about two months ago when the other ultrasound tech quit and I have had to do the work and on call of both positions. At first they were not willing to pay me any extra for the additional call and overtime but I told them I would not do it unless I was compensated. The CEO reluctantly decided to pay me the applicable call pay for the extra call and three additional hours of overtime every two weeks. The CEO said that we can't call it overtime, but it will be listed as a bonus on my check. The call pay is OK, but the three hours of overtime doesn't even come close to covering what I actually work. In fact, I worked three hours over today. I am normally double booked on patients, including through lunch, which I normally don't get. I have started reading the FLSA and I think I should be paid for overtime and call. When I brought up my findings to my direct supervisor, I was told that "I know, you know, and they know that they are breaking the labor law, but they do it any way." What is everyones opinion on this situation?
There are basically two different types of law.
- Under labor law (FLSA), "salaried" is just a payment method that means next to nothing by itself. Under FLSA there are something like 100 exceptions to either minimum wage, or overtime or both. Some of the exceptions impose a Salaried basis requirement and this is what sometimes confuses people into assuming that "salaried" by itself means something. If you are Exempt Salaried, then under labor law you are never owed anything more then your salary. The Exempt status is a function of the duties test and sometimes the industry. I know that you mentioned your job title although there is an actual FLSA regulation that job titles are legally meaningless. I will include a pointer to the so called White Collar exceptions (http://www.dol.gov/esa/whd/regs/compliance/fairpay/main.htm), especially the Professional exception. If you legally qualify for this exception, then under labor law you are due nothing but your salary.
- There is a second type of law called Contract Law. You could argue that even if you are legally Exempt under the Professional exception and have no labor law "right" to additional compensation that you and your employer have created some type of legally binding contract for additional compensation. Anything is possible, but this is the sort of argument that you need to take all available documentation to a local attorney for review. Such arguments are very specific to state law and the exact wording of the documentation.
jaghf221
02-06-2009, 10:33 PM
I read the dol info from your link and I don't think I would be under exempt status for the following reasons. My written job offer has my starting pay listed as an hourly rate. My job tasks are predominately physical in nature rather than primarily intellectual in nature. I do not supervise anyone. Although I have a BS in Radiology, many ultrasound techs only have certificates or on the job training and no professional registration is required.
Also, if my status is indeed non-exempt, would I be entitled to the call pay that is listed for non-exempt employees in my handbook? If dol investigates, back pay is awarded and I am then treated as an hourly employee, can the hospital cut my hourly pay? Thanks for the reply
I do not know what "call pay" is. I know what "on call" pay is.
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_785/29CFR785.17.htm
Pay can generally be cut on a go-forward basis only, not for work that has already been done.