Employer located in VA State. All work perfromed in VA State. Employer is an architecture firm.

Employees are interior designers of architecture firm working for clients and billing hours worked to the clients. If an employees does not work 40 hours a week, they need to use paid time off to get up to 40 hours so they can be paid their full salary. Example, 38 billable hours + 2 PTO Hours. If employees work more than 40 hours. All hours are billable to the client, but the employee does not earn extra compensation and is paid their flat salary.

Employees are getting un happy now since they voluntarily would work the extra time to push out their deadlines, but now they are being told they have to work mandatory overtime of about 10 or more hours a week.

Should these employees be considered exempt from overtime? My issue with this is they are being mandated to work overtime and the employer is billing the hours worked. And, if the employee doesn't work a full 40 hour week, they have to make up the time with PTO time in partial day increments. My understanding of one factor of being exempt is that you can only be docked pay in full day increments. For this employer mentioned above, the employee would be docked 2 hours if they did not have any PTO time to apply if they only worked 38 hours. Now they are being told they have to work 10 overs overtime and will not be getting an additional compensation.

Let's be honest, in a good job market and economy, this wouldn't fly. The employees are scared they would lose their job if they don't work the mandated overtime.

Should these employees be considered exempt? If not, what can be done?

thanks for your help.

Anthony

You seem to be working from a false assumption. Legally almost any employer can make almost any employee work pretty much any hours that the employer wants. What exceptions exist tend to be things like airline pilots, long haul truckers or minor children employees. There is no law what-so-ever in any state that employers cannot make an employee work lots of overtime solely because they are Exempt. The only thing "Exempt" means is that the overtime does not have to be paid for. I have been Exempt pretty much forever and I have had employers for whom I routinely worked 80+ hours weeks. This was perfectly legal (and perfectly a pain in the hinny).

Regarding whether or not these employees can be treated as Exempt, the related rules would be the Professional exception (http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17d_professional.pdf)