My husband is a systems administrator. He is the only IT employee for this company of about 79 people. He is classified as exempt. He works 8 to 5 m-f and on call (blackberry) 24/7 365 days. He works 50 to 60 hours a week. He does not receive overtime but they pay him double time for holidays. But if he takes off he has to use vacation time or he gets docked. His pay was recently reduced (bonus and salary reduction combined total is 50% reduction) They want to outsource the position but he was diagnosed with cancer last year so they told him they would keep him so he can keep his insurance but they are capping his salary. From what I am reading the computer jobs are complicated in catagorizing either exempt or not. Just curious....
I forgot to add that he is the only "exempt" employee to be affected during this downsize. They have added additional job duties that were duties of others in the office who were laid off. They are dividing up the duties and including him in this.
I'm not sure what your question is. Are you asking about his exempt status? The salary cap? Their changing their minds about outsourcing his job so he can keep his insurance?
I guess the main question is can they treat him as exempt and non-exempt at the same time?
If you are exempt you work any amount of hours with no overtime pay.
He falls in that catagory.
When he works a holiday (he always does), they pay him double time.
If he takes time off to go to the doctor or anything they deduct vacation time or he gets docked.
Now with the current salary cut and cap they want to keep him exempt with the same 24/7 on call status and add non IT jobs to his position which will mean more hours because he will have to do more of the IT functions after hours.
The only thing you have mentioned that *might* invalidate the exemption is IF they are docking his actual pay in PARTIAL day increments. It is LEGAL to dock an exempt employee in full day increments if he voluntarily takes time off. It is also LEGAL to require that he use vacation time in EITHER full or partial day increments for absences.
It is a nice perk for them to pay him double for holidays but I'm not seeing how that is 'treating him as non-exempt'.
Both exempt and non-exempt employees can be required to work as many hours as the employer needs or wants. The only question is whether or not they need to be paid overtime for it.
IF they add additional duties to his requirements AND IF that means that the majority of his job duties do not qualify as exempt, then we have a different story.
No, the employer cannot treat an employee as Exempt and Non-Exempt at the same time, but what the government means by that is maybe not the same thing as what you (the OP) means by that. Easy stuff first.
- Deductions to the vacation/PTO balance has nothing what-so-ever to do with the Exempt status. Federal DOL is very clear on that point.
- Assuming that an employee is otherwise legally Exempt, paying them additional compensation for say working on a holiday is not legally required, but per federal DOL does not by itself risk the Exempt status. Most (but not all) courts agree with this. Because a few court decisions have disagreed, some employers are careful about directly linking additional pay to specific hours worked (just in case).
- On call in no way risks the Exempt status. It is perfectly legal to have an Exempt employee on call 24/7/365 without risking the Exempt status.
- The one interesting point you did raise is the Exempt status itself. The Exempt status is a function of all hours worked. Adding Non-Exempt duties to an otherwise Exempt job does indeed potentially risk the Exempt status. Moreover, the IT exception is tricky. It tends to be improperly and excessively used. It is worth reviewing the classification.
http://www.dol.gov/esa/whd/regs/compliance/fairpay/main.htm
Thank you for all of the information. The computer jobs are tricky. It does appear from his job description that he would be non-exempt comparing it to the computer job tests.
