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View Full Version : Texas "Chinese Overtime"/salary question.


Caine
10-18-2005, 09:01 PM
OK here's my situation.

I work at a law firm that does credit card collections in Texas.

I was told that I was going to be paid a "base" salary of 2,000$/mo. Any amount of money I collect over a certain initial minimum I receive a percentage commission on.

However, I don't believe the pay is true salary as it is not a fixed amount regardless of absenteeism, etc. We are paid on the 1st and 16th every month. Any hours missed, even part of a day where you leave early due to feeling poorly,etc, or come in late, leave early, or take over an hour for lunch are docked from that period's pay at a rate determined by dividing the total hours worked not including overtime into the 1000$ weekly pay. At least this is my impression. People have been hesitant to explain the details to me. They may just do the # of workdays in the year x 8 hours divided into 24,000$ to get an average hourly wage and dock that.

Regardless this would seem to qualify as hourly, not salary. Also the workweeks are defined at the time of hire as being over 40 hours per week. In case that is signifigant.

I was told that as we are salaried commission employees we are paid chinese overtime and those extra few hours each week which we are regulary scheduled for, and that that extra time does not count as overtime since we knew the schedule and accepted it as a term of our employment and salary which we would be paid, (we have a work schedule which does not vary week to week with set hours that total about 48/week including 4 which are scheduled on a saturday), we only get 1/2 pay for those 7-8 hours which are in excess of 40 hours.

Is that correct and allowable? It seems like then employers can have their cake and eat it too; the benefits of an hourly employee (docking pay) with the advantages of a salaried employee (chinese overtime). Am I nitpicking or is there something here?

Thank you in advance and if I left any pertinent information out please let me know.

Pattymd
10-19-2005, 06:08 AM
Do you know whether you are an exempt or a nonexempt employee? "Salaried" is merely a pay method, and there is such a thing as salaried nonexempt.

Caine
10-21-2005, 04:43 PM
I have no clue what the distinction is. I pay taxes if that's the reference. Normal office job, no special status, what have you. Does that clarify anything?

Pattymd
10-22-2005, 06:44 AM
Here are the requirements for being exempt from overtime. Do you qualify under any of these criteria?
http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17a_overview.htm

Caine
10-22-2005, 04:17 PM
That all appears to be fairly moot because, as I mentioned, they all contain the criteria that:
"To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week."

I don't feel I qualify as salaried as deductions are made for time missed of less than a day such as arriving late or leaving early and from what I can see:

"Circumstances in Which the Employer May Make Deductions from Pay

Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act." (http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17g_salary.htm)

that does not meet the salary requirement.

I don't feel that any of the others which include a "fee basis" apply. I am not in management or administration nor do I do outside sales. I do credit card collections for a base pay + commission which could conceivably count as sales however it's all on-site but for 3rd parties. I think fitting my job description into any of the exempt categories which are salary OR fee would require quite a stretch. Your thoughts?

Pattymd
10-23-2005, 04:33 PM
That's why I referred you there. If you think you are a nonexempt employee who has been misclassified, as thus should be receiving overtime pay, then you can file a claim with the state Dept. of Labor. And, btw, "Chinese overtime" is not the proper term. You may be thinking of salaried nonexempt under the Fluctuating Workweek pay method, or a Belo plan.

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