My company recently transitioned me over to a 'Salary Plus' position which is defined as "a customized adaptation of the FLSA Fluctuating workweek calculation that allows classification of entry level professional and selected career level positions as “salaried, non-exempt” employees eligible for OT pay."

It appears to me that I am classified as non-exempt. My HR dept. is not confirming my classification as non-exempt or exempt. As it stands now, my paychecks say hourly, I have to log all of my hours and justify overtime....HOWEVER, I only get half-time OT. If I'm non-exempt, aren't I entitled to the company policy for premium pay for hours worked over 40/wk?

My real question is: Am I exempt or non-exempt? I didn't know there was a third classification.

Please help me...my HR department isn't even trying.

There isn't a third classification. You are a non-exempt employee being paid on a fluctuating work week method, which is legal as long as you meet the qualifications. Whether you personally do or not is something I'll let Patty address.

It would help to know what you do for work, before you decide whether you are exempt or not, unless you are satisfied that they have properly classified you as an "entry level professional".

It would also help to know what state you're working in, as your state law might have a fluctuating workweek analysis that is different from the federal law.

Phil, I'm thinking maybe they're paying under a Belo-plan?

Thanks for that thought. That's certainly a possibility.

That hadn't occurred to me because the poster didn't mention significant fluctuations in his hours worked each week above and below the 40 hours. But I should ask.

Here's a site some of my clients find helpful in thinking about Belo-Plans:

http://www.payroll-taxes.com/articles/beloPlans.html

Thanks Patty

To answer your questions:
1) My job is national facilities management. I manage maintenance and repair for over 1900 retail stores across the country. I am not entry level - but my HR dept. does list me as a 'professional'. I'm not an 'on the clock' worker (PS - before Jan 1, I was exempt; after Jan 1, I became this 'salary plus' status)

2)I work in VA

3)As far as fluctuations are concerned - before Jan 1, I consistently worked 50-55 hrs/week. I was exempt status, so I made a salary, regardless of time worked. After Jan 1, and the new classification, I still work 50-55hrs/wk. I've never worked less than 40 hours a week.

Under my new pay model, I will get paid for 40 hours a week, even if I work 30 hours (HR says that this is 'like a salary' because I'm guaranteed pay for 40 hrs, however, I still have to input my hours or I will not be paid).

Does this clarify?

What that tells me is that you could NOT legally be paid under a Belo-plan, as that requires that your workweek hours regularly fluctuate both over and BELOW 40 hours per week.

However, here is the CFR regarding salaried (pay method) nonexempt (FLSA classification) and how it works for fluctuating workweeks. You must have entered into an agreement with the employer for this method, but otherwise it appears that the employer is paying within these acceptable provisions.
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_778/29CFR778.114.htm

It's not a matter of "switching" from exempt to this "Salary Plus" pay method. They are either treating you as an exempt employee or they aren't.

There was no agreement. They just sent me an email telling me what my new classification was. Ever since, I've been trying to get them to play ball...

Thanks
Jon

One clarification. When you get paid your half-time OT, what hourly rate is used? Is it 1/2 of your base hourly rate? Or does it go down the more hours you work (that is how this method is applied).

Well, it appears clear from the reg that you have to agree to work for XXX salary per week and that you understand that overtime is at half-time. One clarification. It doesn't say the agreement has to be in writing, and I guess the employer could stretch the limit by saying that you continued to work after the change, so you must have "agreed". :rolleyes:

At this point, however, I would recommend calling the DLSE and inquiring as to what type of "agreement" in necessary in order for the employer to pay this way, and if such a pay method is even legal in California (I think it is, since it's OK for federal, but there may be some exception there).