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Exempt employee at the end of a 90-day probationary period working 113 hours in 7 day

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  • Exempt employee at the end of a 90-day probationary period working 113 hours in 7 day

    My husband is working 113 hours in 7 days (52 in the last 3 days). He work as exempt employee ( just at the end of a 90-day probationary period,fixed salary, 70K year). We know form a friend that his boos (the owner) want to bring a mexican guy to do his job (they are still in negotiations), and the 90-day probationary period was only a excuse to not pay him the $40/h as a freelance (our friend can't testify because she would lose her job in Mexico). We assume that the boos want that my husband make a mistake as an excuse to fired him if the 90-day period ends and they can bring the mexican after all. He said he already fall asleep one time, but he cant quit the job now because his field is to restricted, he need time to find a new job, and his mother and our son have serious medical problems.
    What we can do in Florida?
    What I know about the Florida laws is that we can't do anything at all.

  • #2
    That about sums it up. Better start looking for a new job now.

    I'm not unsympathetic, but it's not just Florida. There is no state in the US where, under the circumstances you have described, the boss would be required to continue your husband's employment. Nor does his exempt status change anything. Or even the 90 day probationary period; that only has legal meaning in Montana, and not always there. (It may be meaningful with regards to unemployment, but not to the legality of the termination.)

    It's a shame that some employers behave like that, but I'm not seeing any illegality. Poor management skills, yes. Bad use of resources, definitely. But illegality, no - not based on your post.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      We are now discussing if he really is a exempt employee. He is an designer, he don't have a management position, his work is supervised... We are thinking if he can file a lawsuit for non compensated overtime, and if he can proved that with testimonies from ex-coworkers, or his own, even if the company are making false records ( they are!!! the last week he work 113 hrs but they only recorded 45, and that's because they need to bill a client 45hrs this week for my husband work !!!) How he can keep a good record? We found:
      • Their own testimony that they worked off the clock. (he have it, of course)
      • Testimony of co-workers who will say they observed them working( maybe)
      • Building entry and exit records, if available ( we have to search if the 24 stories building with 250,000 square feet of office space can help us with their records)
      • Parking ingress and egress records, if available (no, he pay $100 a month for a "private" parking in the building)
      • Computer sign off and sign on records (? He just orally inform his supervisor if he go to lunch, to the bathrooms, or if he is already in the office)
      • Emails sent after hours from work computer ( How he can obtain that?)
      • Telephone records showing calls made after hours (How he can obtain that??)
      • Security cameras that have date and time features (same as building entry and exit records )
      Exempt or not exempt, records or no records, "To be, or not to be"....

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      • #4
        There are many exemptions to the overtime requirement which do not involve managing others. YOu can review possible exemptions here:
        http://www.dol.gov/elaws/esa/flsa/screen75.asp

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        • #5
          OK, all artists are screwed according to the laws of our country!!!! Yes, he is an artist because he graduated from a design collage, and his final result must meet certain "good visual standards" like a bartender making a good presentation for a ****tail , but he work with a very specific kind of computer that have thousand and thousand of tools that he need to know, and his work can be performed by a engineer or other professional of the computer science field ( they PRIMARILY depends on intelligence, diligence and accuracy, not ONLY in invention, imagination, originality or talent, even if my husband use invention, imagination, originality and talent to make a plus on his work, such as use some tools that other don't use) (95% intelligence, diligence and accuracy, 5% invention, imagination, originality or talent) He usually make some overtime in his work, but no more than a couple hrs per day with the heaviest projects, like many other professionals nowadays. He can be a Exempt Creative Professional if he use 5% invention, imagination, originality or talent to deliver a better final work? He is not sitting in a chair staring at the ceiling thinking about how to make the project. How a judge can assess a case like this?

          The FLSA said:
          Creative Professional Exemption:

          To qualify for the creative professional 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 work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

          Invention, Imagination, Originality or Talent

          This requirement distinguishes the creative professions from work that primarily depends on intelligence, diligence and accuracy. Exemption as a creative professional depends on the extent of the invention, imagination, originality or talent exercised by the employee. Whether the exemption applies, therefore, must be determined on a case-by-case basis. The requirements are generally met by actors, musicians, composers, soloists, certain painters, writers, cartoonists, essayists, novelists, and others as set forth in the regulations. Journalists may satisfy the duties requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent. Journalists are not exempt creative professionals if they only collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product.

          Recognized Field of Artistic or Creative Endeavor

          This includes such fields as, for example, music, writing, acting and the graphic arts.

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          • #6
            And he must be in the office by 9am every day, he can go home only at 6pm, or more if they still have work to do !!!! (on Saturdays and Sundays sometimes he can go to work at 10am or 10:30am) He has a supervisor for the hrs and for his work, and sometimes the customer is sitting behind him for hrs to request changes or to direct in person the final visual outcome of the project.

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            • #7
              Being able to set your own hours is NOT a standard by which exempt status is measured.
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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              • #8
                Originally posted by xrc View Post
                And he must be in the office by 9am every day, he can go home only at 6pm, or more if they still have work to do !!!! (on Saturdays and Sundays sometimes he can go to work at 10am or 10:30am) He has a supervisor for the hrs and for his work, and sometimes the customer is sitting behind him for hrs to request changes or to direct in person the final visual outcome of the project.
                Setting work hours or having a supervisor does not mean the employee isn't exempt.

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                • #9
                  Thanks, cbg and HRinMA.
                  Yes, now I know that an exempt or not-exempt status is based on "job duties".

                  He PRIMARILY depends on intelligence, diligence and ACCURACY(A LOT OF THIS ONE).
                  My husband said that even in the few days with more creative freedom he can only use "invention, imagination, originality or talent" no more than 30% of the time (just 7% of the time in a week as average)

                  He receive from a creative director the guidelines to do is work.
                  He use the program tools to make, for example, a car surface reflect a city, even if in the original image there was a camera (as requested by the creative director) In the few days with more creative freedom he can decide if the sun light could bee a little more present, or if the shadows under the car should have a slightly green tone.

                  His work is more or less the recreation of a possible reality created by the creative director, based almost strictly on the physics of the actual reality.

                  He doesn't imagine or invent anything by his own, he just put the parts together like a surgeon doing a face reconstruction, even if sometimes he can decide to raise a little more or less the arch of the eyebrows.

                  A surgeon could be a exempt employee JUST because sometimes he can decide to raise a little more or less the arch of the eyebrows? This whole thing is driving me crazy!

                  Comment


                  • #10
                    This is going to be a soft answer. The Professional exemption is largely based on how similar employees have been classified in the past. Short answer, the employee files a wage claim (or in your state a small claims court action). It works or it does not.

                    Longer answer. Each state (mostly) has their own DOL and has many decades of adiministratively deciding exactly what is required to be considered a "professional" in that state. Could be a licsence combined with some sort of educational requirement. Could be a lot things. FL does not actually have a DOL, so it is more like looking at prior court decisions. Plus maybe they take more a lead from federal DOL decisions. You could probably research that specific job classification against the federal DOL website. Problem is at the end of the day, the decision will likely be made a FL small claims court judge who has not actually looked at the federal DOL website.
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

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                    • #11
                      If he is doing design work, chances are he qualifies as exempt. just because he isn't creating in a vacuum doesn't mean he is not exempt. Every designer must satisfy certain guidelines, whether because it is what the client requests or to meet the employer's standards. The creative exemption does not require he be allowed total free license to design whatever he likes.
                      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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                      • #12
                        Thanks DAW.
                        I'm will make a research for that specific job classification against the federal DOL website, and I will look at prior court decisions in FL or US, because he is a Shake operator (a digital compositing program from Apple), and in Florida there is no more than 20 of them, but more than 500 in California.

                        Comment


                        • #13
                          Maybe not exactly my husband case, I will do more research.

                          A case against Electronic Arts where workers were being incorrectly classified as exempt while being required to work long days and more than 5 days in the week without extra compensation:

                          Electronic Arts to Pay $15.6 Million to Settle Overtime Case
                          October 06, 2005

                          Video game publisher Electronic Arts Inc. said Wednesday that it would pay $15.6 million to settle claims that it required GRAPHIC ARTISTS to work long hours and weekends without overtime pay, resolving the first of several cases highlighting working conditions in the fast-growing industry.

                          The world's largest independent game publisher also agreed to reclassify about 200 entry-level artists as eligible for overtime, said Jose Martin, head of human resources for EA Global Studios. In May, the company reclassified about 240 jobs spread over its corporate, studio and marketing divisions as eligible for overtime.

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                          • #14
                            It is very hard for anyone to qualify as exempt in an entry level position. Typically entry level jobs are ones where employees are given a lot of direction with much more structured assignments as they are new to the field. Someone who is just "cleaning up" the images someone else created would not qualify as exempt though their title might be Graphic Artist. The person who creates the initial image would qualify. I'm not sure where your husband falls on the spectrum.
                            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                            Comment


                            • #15
                              Agreed. Job titles are meaningless. And a lot of people doing nominally similar things can legally fall under either side of the classification. an example is chef vs. cook. Someone who flips burgers at Mickey D's is non-exempt. Someone who is the head chef at a big five stat restaurant is likely Exempt. Even though they both cook food and could maybe have superfically similar job descriptions. The government also looks at educational requirements, professional credentials, and overall responsibilies. There is often no "bright line" with the Professional exception, but rather a history of how similar employees have been classified. Saying that someone is an "artist" does not change this.

                              The government is always going to see what they have decided before with similar cases. If this is an entry level position with minimal educational and professional credential requirements, the chances that the government will agree with an Exempt classification is minimal. But if the person actually has stellar educational and professional credentials and the job requires these, the chances that the employe is Exempt is quite good. An argument can be made (for example) that a Chiropractor and a Massage Theropist do very similar things. But the first is generally Exempt and the second is generally non-exempt. So, yes duties are a big deal, but they are not the only deal. Not with the Professional classication. Yes, the "creative" portion of the Professional exception does not stress the educational and professional background to the same extent, but in exchange they stress the "how have we classified this in the past". There is no legal intent that all "creative" employees without exception are Exempt. "Creative" is not a magic word that make paid overtime go away. At best it is an argument the employer can try which may or may not work.

                              The separate IT professional exception was mentioned. That has its own case law and federal DOL is very clear that not everyone who works with computers are Exempt. The general rule is that people who design computer programs are Exempt while people who write code are not, but there are many exceptions and like all other Professional classificaitons, there is a lot of prior history which determines who fails on which side of the line. Yes EA got hit with a bad classification decision. No surprise. A lot of companies do. The IT professional exception is a tough line to draw and many employers draw that line a bit too sharp.
                              Last edited by DAW; 02-22-2013, 12:28 PM.
                              "Reality is that which, when you stop believing in it, doesn't go away".
                              Philip K. **** (1928-1982)

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