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  • MA Change from Salary to Hourly

    I have worked for a MA company since 8/02 as a salaried admin to the Sr. VP
    of NE Region. I am now being told that I when hired I was coded wrong
    and should have been non-exempt. So 3 1/2 years later I am being
    dropped from grade 15 to grade 7 (even though I am now Sr. Admin to two VP's) and have to submit timecards two times monthly. Is this legal? There
    are vacation differences etc with these hay grade levels as well as benefit differences.

    An admin over me stated that maybe they were doing me a favor by coding me incorrectly - I think not - if I were to be coded hourly from the begining then I lost a ton of OT pay over the years since my typical work week was between 50 - 60 hours!

    Just looking for answers.

  • #2
    Yes, it is legal.

    Any employee can legally be treated as non-exempt and paid hourly, but the reverse is not true. Only employees who qualify for one of the exemptions allowed under the FLSA can be paid on a straight salaried basis. An employee who qualifies as non-exempt can be paid salary plus overtime, but only one who qualifies as exempt can be straight salary.

    There are three possible reasons for them to be making the change now, and all are legal.

    1.) You really were miscoded when you first came on
    2.) You qualified as exempt when you were first hired, but when the Fair Pay Act was enacted in August of 2004, you no longer qualifed and it's taken them till now to finish the research
    3.) You do qualify as exempt but they have decided they want the position to be non-exempt.

    If the answer is #1 or #2, then it is not only legal, it is REQUIRED that they recode you to non-exempt. The good news, for you, is that if the answer is either #1 or #2, you may be able to collect the back overtime you never were paid. Contact the MA AG's office Fair Employment Line for more information.
    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.

    Comment


    • #3
      MA Change from Salary to Hourly

      Thank you, my thoughts exactly. From what I was told, I was coded incorrectly from the date of hire, I should never been considered an exempt associate. I completed a simple spreadsheet using "only" 5 hours per week of overtime (some weeks it was 10 -15 hours - I have emails sent by me to staff etc proving that I was working all sorts of hours), being conservative using 5 hours, calculations came to $21,837 of OT pay not received over the last 3 years.

      As an admin to two VP's there are many occaisions that working from home at night and weekends is necessary to finish up with presentations for client meetings etc.

      The issue of me being salary vs. hourly has been going on for at least two years - but was never changed. The previous VP stated that if not on salary - OT would not applied until "after" I worked 47 hours -
      Last edited by Karabundy; 01-07-2006, 10:46 AM.

      Comment


      • #4
        The previous VP was wrong.
        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.

        Comment


        • #5
          MA CHange from Salary to Hourly

          Agreed - in my research laws clearly state that OT begins after 40 hours - not 47. More than likely I'll not collect back OT pay - at least I have the answers I was seeking.

          Thank you

          Comment


          • #6
            If you were misclassified as an exempt employee, then your employer is obligated to pay you your back wages. You may choose not to enforce your rights, if you've decided just to let it go. But, keep in mind that MA law generally prohibits employees from waiving claims to their wages.

            Beware, though, that your claim under MA state law can go back only 3 years for overtime wages from the date you file suit, and under Federal law 2 years (or 3, if you can prove the willfulness element). There are some possible contract claims that can go back 6 years, but it doesn't sound as though you have one of these.

            And you should also be able to collect double or treble damages, plus attorney's fees.

            Many people decide not to take action against their employers for a variety of reasons. I'm not saying you should, but the best thing to do is keep good records, so if things sour in your relationship, or your employer begins doing other things that are illegal, then you'll have the basis for a claim.
            This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

            This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

            Comment


            • #7
              MA CHange from Salary to Hourly

              Dear Attorney Gordon,
              Thanks for the reply. It is not that I do not want to take action, but I can not afford to be out of a job right now and I fear that will be the outcome. The issue of me being classified as an exempt/non-exempt associate has been ongoing (January 2003, January 2004 etc). Nothing was ever changed. Back in May of 2005 – I asked the then VP for an increase (due to financial strains). He asked “did I not think that I made good money for my position?” I told him, that working an average of 45 hours a week as I was hired for, then yes, but certainly not for working 50 – 60 hours a week. Again the issue of me being non-exempt came to light. He was not happy with my statement – he stated that “an average work week was a minimum of 47.5 hours – and I was never told that the week would be 45 hours.” Although he never formally gave me anything – I came across a document that he was going to give to me. Say my yearly salary was $50k – the letter stated that I would work 40 hours @ a rate of $18.80 per hour – and 7.5 hours of OT @ a rate of 28.20 per hour. All totaled would bring me to the $50k per year. The topic was again dropped due to his termination. When the new VP came aboard in July – I again asked for an increase – the non-exempt issue was again brought up. I met with the new VP and the VP of HR. That was August 1 – again nothing happened. – my thoughts were that the issue was dropped because effective September 29th or so, I transferred to another division and now support two Sr. VP’s rather than one.

              Come January (when our performance appraisals are completed and pay raises are issued) the issue of my exemption status comes up again. I found out through a Sr. Exec. Admin that my status was changed to non-exempt. Obviously, I brought up the issue to the two VP’s and the HR VP.

              Today I received an email from the Human Resources VP – a letter that was dated in August (that I never received) – talking about my being classified as non-exempt beginning with my next pay period. Obviously that did not happen. I later received a phone call from the HR VP stating that they are keeping my pay as salary until we all can meet – sometime late January. At that time my status will then be changed to non-exempt.

              Comment


              • #8
                Keep in mind just because an employee is paid on a salaried basis, does not mean that she's not entitled to overtime. The nature of the job and/or type of employment is what governs.

                Cathy is right on when it comes to the Federal Laws (FLSA), but you're in MA, so you also have state law claims. And, in this state, the only employees exempt from overtime are those listed in MGL c.151, sec. 1A.

                The state law also governs when pay is due - basically, every two weeks is acceptable. If they're late, they typically owe you multiple damages and the attorneys fees it takes to collect. And they can't ask you to settle for less than you're owed.

                In any case, you should keep great records of your time, the names and addresses of other employees being treated simlarly, the names and addresses of your managers, the names of all those present when you were working late, all dates and times of your work, conversations you had about your pay, letters and communications, your offer letter, paystubs, your employee handbook....basically, anything you think you'll need to prove your case.

                Hope things get better.

                Phil
                This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

                This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

                Comment


                • #9
                  MA Change from Salary to Hourly

                  Dear Attorney Phil,

                  I have a meeting with the bosses tomorrow, hopefully it will all go well. I think that I have gathered enough information to state my case with them .. The issue of me being hourly vs. salary has been going on for over three years now - using a minimum of 5 hours there is allot of back-pay that could be owed. Working as an admin for 2 VP's - a work week is at least 45 - 50 hours - I fear that they are going to do the same to me as they did with others - and require me to work 50 hours a week before OT begins - actually what they do is take the salary - calculate a formula - so that you get OT after 40 - but have to work 55 (15 OT hours) to make the yearly salary hired for .. not sure that what they do is standard practice - but it certainly is not fair to require someone to work many more hours just to make the salary they were hired for on salary. Correct?

                  Comment


                  • #10
                    Kara, if they are treating you as non-exempt, regardless of why, under the law you have to be paid OT when you have worked more than 40 hours. With the exception of an honest-to-goodness Belo plan, which you would only qualify for if sometimes your work week is over 40 hours and sometimes under, there is no legal way they can avoid paying OT for hour 41 and up. That's both state and Federal law.
                    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.

                    Comment


                    • #11
                      Salary to hourly

                      Oh they pay OT - but they work the formula out so that you have to work more hours in order to make the same salary - i.e. they take your yearly salary - say $35k - which would eqate to $16.83/hour for a 40 hour work week. Then they say an average work week for the account is 50 hours - They then take the average OT worked a week - 10 hours. So in order to make the $35k hired for - one has to work 40 hours a week @12.24 and 10 hours @ OT rate of $18.36 .. so there are those who were hired for less pay ($30K) because of the account - working only 40 hours and making $14.52 per hour - more than the person who runs a larger account and has more responsibility - has to work more hours JUST to get the salary initially hired for.

                      Comment


                      • #12
                        They recalculate your pay rate every week? Is there an express agreement for this? MA permits fluctuating hour workweek calculations, but it has to be clearly understood.
                        This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

                        This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

                        Comment


                        • #13
                          MA Salary to non-exempt pay

                          From the way I understand it - if you want to make the salary that you were hired for (as a salaried associate) - you have to work the number of hours the new rate was calculated at ... example:

                          Harry was hired at $30,200 which if broken down equals $14.52 per hour for 40 hours (if hourly).. his place of business is not that busy - so he works only 40 hours at the rate of $14.52 - anything over he gets overtime ..

                          John was hired to make $41,800 - broken down equals $20.10 per hour - his place of business is much busier - his normal work week is 50 hours - his hourly salary is now $14.62 per hour for 40 hours - and 10 hours is paid @ $21.93 ...

                          To make a long story short - Harry makes $0.10 less per hour for working an account that does not demand much time - John has to work (at least enter in payroll) 50 hours a week in order to make the salary he was hired for.

                          So what happens when the place of business slows down - does John still enter the 50 hours a week - even when he didn't work it without getting into trouble ????

                          Comment


                          • #14
                            OK. Here is the CFR regarding the fluctuating workweek method of paying nonexempt employees under the Federal rules.

                            http://www.dol.gov/dol/allcfr/ESA/Ti...CFR778.114.htm

                            MA law permits fluctuating workweek analyses but requires a "clear and mutual understanding" that the employer would pay a fixed salary regardless of the number of hours worked.

                            .
                            This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

                            This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

                            Comment

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