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exempt or not exempt - that is the question (florida) Florida

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  • exempt or not exempt - that is the question (florida) Florida

    I was hired as a manager in a salaried exempt position - at the very bottom of the pay scale for my job. However, I am managing / supervising no one and the people who are supposed to be "supporting" me, report to my boss not me or any other 'manager'. I work 70+ hour weeks and wonder if I am due overtime pay. My understanding for salaried positions is that they are paid on performance - not hours...yet they require a weekly time sheet documenting my hours - although I am salaried. My last company I had a similar role and they had to change everyone's title and pay scale due to labor laws and in fact I became eligable for OT.

    question: Is Manager in title enough to make the company not have to pay me OT for work they are adding to the load I was initially hired to take on?

  • #2
    Originally posted by littlewrkrbee View Post
    My understanding for salaried positions is that they are paid on performance - not hours...yet they require a weekly time sheet documenting my hours - although I am salaried.
    Companies can, and often do, have salaried exempt employees document hours worked, but they cannot dock pay for putting in fewer hours than expected, aside from some limited circumstances.

    The real question is, what do you do?

    Only the Executive Exemption requires supervision of others. The Administrative Exemption (which you may meet) does not require that.

    http://www.dol.gov/esa/regs/complian...nistrative.htm

    Administrative Exemption

    To qualify for the administrative employee exemption, all of the following tests must be met:

    The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
    The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
    The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
    Primary Duty

    “Primary duty” means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.

    Directly Related to Management or General Business Operations

    To meet the “directly related to management or general business operations” requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example from working on a manufacturing production line or selling a product in a retail or service establishment. Work “directly related to management or general business operations” includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, Internet and database administration; legal and regulatory compliance; and similar activities.

    Employer’s Customers

    An employee may qualify for the administrative exemption if the employee’s primary duty is the performance of work directly related to the management or general business operations of the employer’s customers. Thus, employees acting as advisors or consultants to their employer’s clients or customers — as tax experts or financial consultants, for example — may be exempt.

    Discretion and Independent Judgment

    In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The term must be applied in the light of all the facts involved in the employee’s particular employment situation, and implies that the employee has authority to make an independent choice, free from immediate direction or supervision. Factors to consider include, but are not limited to: whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval, and other factors set forth in the regulation. The fact that an employee’s decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment. The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures or specific standards described in manuals or other sources.

    Matters of Significance

    The term “matters of significance” refers to the level of importance or consequence of the work performed. An employee does not exercise discretion and independent judgment with respect to matters of significance merely because the employer will experience financial losses if the employee fails to perform the job properly. Similarly, an employee who operates very expensive equipment does not exercise discretion and independent judgment with respect to matters of significance merely because improper performance of the employee’s duties may cause serious financial loss to the employer.

    Educational Establishments and Administrative Functions

    The administrative exemption is also available to employees compensated on a salary or fee basis at a rate not less than $455 a week, or on a salary basis which is at least equal to the entrance salary for teachers in the same educational establishment, and whose primary duty is performing administrative functions directly related to academic instruction or training in an educational establishment. Academic administrative functions include operations directly in the field of education, and do not include jobs relating to areas outside the educational field. Employees engaged in academic administrative functions include: the superintendent or other head of an elementary or secondary school system, and any assistants responsible for administration of such matters as curriculum, quality and methods of instructing, measuring and testing the learning potential and achievement of students, establishing and maintaining academic and grading standards, and other aspects of the teaching program; the principal and any vice-principals responsible for the operation of an elementary or secondary school; department heads in institutions of higher education responsible for the various subject matter departments; academic counselors and other employees with similar responsibilities. Having a primary duty of performing administrative functions directly related to academic instruction or training in an educational establishment includes, by its very nature, exercising discretion and independent judgment with respect to matters of significance.
    Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

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    • #3
      thank you for the feedback. To answer your question, I am a "Project Manager" though not certified. I was promised by our executive management 'training and certification' but that has not yet happened for me or our other project manager team. I am at the low scale of 45k and yes, they do dock a day's pay if I am sick and work from home. Additionally, we are in jeopardy of being 'written up' if we show up after corporate start time of 8:30am.... regardless of how late we stay.

      by the way, our executive management has also promised our bonus plan to begin January 1 but now it is near April and they say it is being 'worked on'.

      Comment


      • #4
        Certified, not certified, not relevant.

        I am guessing that you could be classified as exempt using the Administrative Exemption.

        Your pay could be docked if you are a brand new employee and do not yet meet the requirements for PTO (a practice that I dislike and question, but legal).

        I am simply floored by the idea that you could work from home AND be docked for the time away from the office.

        In any event, if you are exempt, there is no overtime owed you. If exempt and your pay is being docked for partial day absences, there is a problem. If it is being docked for full day absences for your illness (not one of a family member), there could be a problem, depending upon your eligibility for sick leave.
        Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

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        • #5
          thanks again for the information. I guess we will chalk this one up to the learning curve.

          Comment


          • #6
            One question, though. If you're home sick, what are you doing working? And do they KNOW you're working? Are you just checking emails once or twice during the day?
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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            • #7
              yes, 'they' know I am working on the 2 occasions I have worked from home sick. On both occasions, I was too ill or had a fever to go to the office, yet deadlines and responsibilities had to be met. As the Project manager, my understanding was that it was within the scope of my responsibility to oversee these items - regardless of if I was in the office or home sick.

              No, this was not just checking emails - this was working on timelines, effecting budget changes and yes, communicating electronically. A few calls were made from home, but mostly worked from my laptop.

              Again, my understanding was that this type of job was performance based -not based on hours - so if the projects failed due to the tasks not being done (just because I was out sick is not a good enough reason in my book) then in effect I failed in the role.

              Comment


              • #8
                That's fine, but then they shouldn't be charging you for a sick day, in my opinion (although it wouldn't be a violation of any law for them to do so). Now, if the company doesn't offer a reasonable sick pay plan (at least 5 days per year), they would have to pay you when you're out sick regardless. And, if you were out of time off or not yet eligible to take any, you can be docked for full day absences, including sick, but you CANNOT be docked if you were working.
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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