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Additional benefits for exempt employees Georgia

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  • Additional benefits for exempt employees Georgia

    We are a group of anesthetists who are employed by a local hospital. We are exempt, and have been working under an agreement with the hospital/HR since 2003 that gives us extra pay for carrying a beeper, for any hours worked over 80 in a two week pay period, and extra pay for any hours that are worked outside of our normally scheduled work day (such as call back hours). I was told last week that in order to comply with the labor laws they are changing how they are going to pay us, and we will be paid for 80 hours only-no extra pay over the 80 hours. They will still pay us beeper pay, but they will only pay for 80 hours. If, for instance our pay that is broken down into hourly rates for payroll is 20/hr., and our call back pay is 60/hr, they will pay us the 60/hr for call back as long as it occurs within the first 80 hrs that we work in the payperiod. Anything worked after 80 hrs will not be compensated. This is in violation of the agreement that we have had with HR, and under which our last 10 anesthetists were hired. HR states that the only reason that they are doing this is in order to be compliant with labor law. I have been told by a practice management expert that HR does not have to pay us anything more than our salary under the law, however, they CAN pay us for anything that is included in an agreement between us and HR. A letter is going out to my whole department by June 1, and I am afraid we will have a mass exodus. How can we best handle this? What is legal, and what is allowed? Any help is appreciated.

  • #2
    You will have to take whatever written agreement you have to an attorney in your state, and see if it is legally enforceable. We can't read it from here.
    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
      Can you have such agreements? I wasn't specifically referring to our particular agreement, but as to whether such agreements can exist.

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      • #4
        As salaried (I assume) exempt employees, you are not entitled by wage and hour law to ANY additional compensation over and above your weekly salary. It is not inherently illegal to pay you additional for such additional work/carrying the beeper, etc., but it was not required by law. In fact, some district courts have decided that paying exempt employees extra for additional hours worked (at the equivalent hourly rate) can invalidate the exempt status. I'm guessing that your employer is trying to cut costs, reduce the risk of your exempt status being jeopardized, or both.

        Is this a collective bargaining unit or union agreement?
        Last edited by Pattymd; 05-13-2009, 02:36 PM.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Agreed with the other answers. If I can draw a distinction here, there are several types of laws.
          - Labor law in the context of the question is the federal FLSA law. The key is that labor law is imposed on the parties by the government. The government is not asking the parties (for example) if they want paid overtime or minimum wage. It is (a lot) more like "do this or we will hit you with a big stick until you do this". Labor law is imposed, not negotiated.
          - Contract law is an agreement negotiated between parties. Contract law cannot make labor law go away. You cannot negotiate away something you had no legal authority over to begin with. For example, under the FLSA law, most Exempt Salaried employees must be paid at least $455/week, must follow the 29 CFR 541.602 docking rules and must meet the duties test required for the Exempt status. This is imposed law. There is nothing the parties can do to make this go away. As Patty said, federal DOL (and most courts) do not think that additional compensation by itself risks the Exempt status, so a contract to do so is not inherently illegal (although any contract can be made illegal if done incorrectly). And anytime you have a contract law element to the question, the answer always includes "take your contract to a local attorney for review", since the legality of any contract is always a function of the exact wording of the entire contract in the context of the local state's laws. Labor law on the other hand is pretty much the same for everyone once you know what the facts are. A huge number of exceptions, but the same law.

          The OP's question has both Labor Law and Contract Law elements, and it is hard to keep the answer straight without being clear which element is addressed.
          Last edited by DAW; 05-13-2009, 03:03 PM.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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          • #6
            Salaried vs. hourly/ Exempt vs. non exempt.

            Thanks for the responses. I obviously am not a lawyer-nor do I profess to know anything about the law unless it directly impacts me or those who are in my department-then I try to get as much information as possible. Sorry I wasn't too clear.

            As I understand it we are both salaried and exempt under FLSA-which offers us no protection as it only protects the non-exempt worker. We do not have-nor will we be given-a contract. We DO have an agreement-partially written, partially in place before the written addendum was added. As I understand it, it is entirely legal for an exempt employee to work under an agreement with his employer that offers things outside the 80 hour pay period. I just need to know if that is true.

            The non-written that was already in place is:
            We are guaranteed 80 hrs a pay period
            We have the day off after call during the week and the Monday off after call on the weekend.
            We are paid a minimum amount to carry the beeper.

            After doing a survey of other areas who employ anesthetists, and after losing many of our anesthetists and having to rely on locums for coverage, HR came up with the following in writing:

            The written agreement states that in addition to what is already in place:
            that we are to paid a certain amount to carry a beeper on our call days, (this increased significantly)
            we are to be paid a certain amount for actually working on our call days with a two hour minimum,
            and that if we actually work over 80 hours in a pay period we are compensated the same hourly amt that we are paid for working on our call days.

            This resulted in a scenario where we would be paid our 80 hours regardless of the schedule, and if we worked call we were paid on top of that for the beeper and the callback. We rarely worked over the 80 hrs because we are full staff and because free standing clinics took some of our patient load. However, the weekend callback increased everyone's pay significantly.

            This has been in place since 2003. The latest is that HR is stating that by law they cannot pay us over 80 hours period. They will still pay the premium hourly amt for callback as long as it occurs within the 80 hrs, but once you have clocked 80 hrs they will pay no more in a pay period. My question is, can they actually still abide by the above agreement or some modification of it and still be within the law?

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            • #7
              Have you had a local attorney review the actual "agreement" yet?

              While all contracts are agreements, not all agreements are contracts. Any time without exception there is a contract law question, the answer will always be take all documentation to a local attorney for review.

              You keep saying "agreement". I do not know that your "agreement" is legally considered an enforcable contract. The only way to determine this is to have a local attorney read the "agreement". You are picking out provisions from your "agreement", but if your "agreement" is not legally a contract, then they are functionally meaningless.

              It is compariably easy to answer labor law questions because all companies are subject to exactly the same labor law. Labor law is imposed and it is not possible for the parties to alter labor law.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

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              • #8
                Salaried vs. hourly/ Exempt vs. non exempt.

                I don't think I am coming across with what I am trying to say.
                We are not trying to legally enforce an agreement. I know that that would be a losing battle because we are so small compared to the hospital. We are trying, however, to see if it is legal for us to even have an agreement of the type that we have. Call it a verbal agreement, or a "gentleman's agreement"-even though we have it in writing. When I meet with HR I would like to say either, "I know that you can (or cannot) agree to certain things (such as increasing beeper pay, etc.) and still not be in violation of the law. If they can agree then I would like to appeal to the fact that they really don't want to have to replace our experienced staff with locums because they are changing our terms of employment. They are pretty much saying that it is illegal for them to pay us for anything except our guaranteed 80 hours. They say they cannot agree to pay us extra for call back hours or carrying a beeper because it would put them in violation of the labor laws. I just want to know if that is the case. Thanks.

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                • #9
                  You can have whatever type of "agreement" you and the employer agree to. However, if it is not a "contract", it can be changed or thrown in the trash at any time.
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                  • #10
                    Salaried vs. hourly/ Exempt vs. non exempt.

                    So it is not "illegal" for us to have an agreement? I understand that agreements may not be legally binding. I just want to know if it is illegal to have the agreement. That is what they are telling us. Thanks.

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                    • #11
                      No. It is not illegal for you to have an agreement.

                      It is, however, not required for you to have one either, and if they want to ditch it, they can. If they want to tell you that they are ditching it because it's illegal, they can do that.
                      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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                      • #12
                        Salaried vs. hourly/ Exempt vs. non exempt.

                        Thank you. This gives me a little more information to work with. I know that we are in a precarious position in that we are not protected by the labor law (as I understand it), and as exempt employees our employer is not REQUIRED to pay us for anything other that our 80 hrs per pay period. However, if it is not illegal for our employer to meet some of our demands then we have a little more leverage. They don't want to have to replace us-they went through that before, and that was why we had an agreement in place. I understand that it is not legally enforceable, however, if it is not illegal to have an agreement then they will have to find either another argument or another group of employees.

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                        • #13
                          Originally posted by Mommom60 View Post
                          They say they cannot agree to pay us extra for call back hours or carrying a beeper because it would put them in violation of the labor laws.
                          Almost certainly not true. I am certain any employer can make you carry a 100 beepers and that would be perfectly legal anywhere in the U.S. If you are paid as an Exempt Salaried employee, then the employer can certainly legally increase your salary. It gets interesting if/when they mess with the salary basis. Federal DOL is fine with additional money being paid without messing up the Exempt status. Most courts are fine with additional money being paid without messing up the Exempt status. A very few courts are not fine. These very few courts took exception to paying Exempt Salaried employees additional money based on "overtime" hours worked. These courts said nothing about on-call pay. These courts had nothing to say about the employee receiving money to carry a beeper. These courts said nothing about other many things.

                          I (and Patty) have both worked for large multi-state employers who legally worked around these court decisions. Rather then paying Jane 10 hours overtime at some rate, we would instead make say a monthly discretionary bonus payment not directly based on "overtime" hours worked. Perfectly legal unless the employer went very, very far out of their way to make it illegal. The courts who had issues sole problem was the salary basis requirement. Discretionary bonus payments (properly done) do not violated the salary basis requirement. As long as the employer did not go out of their way to make it look like they were ignoring that requirement, DOL and the courts are generally ok. Not-stupid employers have many legal ways to achieve most objectives. The employers who get caught breaking laws often enough are more stupid then anything else.

                          I am going to suggest that your employer simply does not want to pay this funds on a go forward basis. Absent a contract, this is legal. Lying about the reason why is tacky but not seriously illegal. I have worked for employers who would blame the government for their (the employers) own decisions and to my knowledge, these employers never suffered legal consequences for their lies.
                          "Reality is that which, when you stop believing in it, doesn't go away".
                          Philip K. **** (1928-1982)

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                          • #14
                            Salaried vs. hourly/ Exempt vs. non exempt.

                            Thanks for all the help and the explanations.

                            Comment


                            • #15
                              The possibility also exists that the employer honestly, though mistakenly, believes what they are saying. They would not be the first employer to have a hard time understanding what is and is not permissible.
                              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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