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need advice- should i be non exempt Mississippi

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  • need advice- should i be non exempt Mississippi

    Can someone tell me about overtime laws
    Last edited by malamute; 06-29-2010, 06:33 AM. Reason: misspelling

  • #2
    You don't need to go to the expense or trouble of hiring a lawyer. Enforcing wage and hour laws is something the DOL does for free.

    The ball is in your court as to what you want to do. Is your boss a reasonable guy you can discuss this with without experiencing any backlash and putting your job in jeopardy? Small employers can be truly ignorant of employment laws, especially wage and hour reg's. If you don't feel you can discuss this with him, then your options are to (1) file a complaint with the DOL and let them handle it, (2) do nothing, (3) don't raise the issue and find a job elsewhere.

    BTW, if you do file a complaint with the DOL, it is illegal for your employer to retaliate in any way.

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    • #3
      And the primary reason that you are nonexempt is because, even though your duties may meet the criteria for exempt status (we don't know because we don't know what you do), your weekly salary is below the $455/week minimum.
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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      • #4
        Yes, if the DOL determines that you should have been non-exempt, they can order the payment of back overtime.

        You do not have to prove what hours you worked; the employer has to prove that you didn't work the hours you say you did.
        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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        • #5
          Actually, it's going to be a problem for the employer, not for you. The Fair Labor Standards Act requires that the employer keep records of the hours worked by nonexempt employees. If you file a claim for unpaid overtime, using your best estimates, and the employer can't prove you didn't work the hours you claim, the DOL has pretty much no choice but to go with what you claim.
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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          • #6
            Agreed. Past that, there are a whole bunch of court decisions that say if the employer chooses to not keep records, then the employer is SOL as far as the courts are concerned. I am not saying that it is certain that the employee will win any and all claims. But DOL and the courts are very clear that the employer is basically going to bat in a two-strikes situation when the employer chooses to not keep records when required to do so by law.

            Still, we all know people who could overplay this very strong starting position in such a way that the court would find for the employer. People who feel that they should not only win but impress everyone with just how snarky they can be in the process.

            The employee should just tell the truth. Do not guess high or low. Do not act entitled. Do not vent to the court all problems that you ever had with the employer (the court really does not care). Just stay on topic and tell the truth. The employer is in a hole in this situation. The employee should take no action that helps the employer out of their hole.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

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