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  • salaried and takin avantage of! Advice Please

    I'm a salary "allegedly" exempt employee, the company i work for offers no vacation time or sick days. I've worked so much overtime, I'm required to work 50 hours a week but, really I've rarely worked less than 60-70, sometimes more. I had back surgery and returned to work today after 2 weeks off and was told i was being switched to hourly due to the the doctors note that stated only that i could not exceed 8 hours a day.

    Is This Legal?
    I've given them Hundreds of free hours and now because i'm not supposed to work more than 40 hours they are taking away my salary this just seems so wrong. Please I need advice.

  • #2
    Several things:
    1. You might want to verify that you were ever Exempt Salaried. That would be a function of your actual job duties and maybe your industry (neither of which we currently know). If you really qualified as Exempt Salaried, then the overtime was literally nothing.
    2. No vacation/sick means that there is no "bona fide" sick pay plan under the 29 CFR 541.602 rules. Which means that up until now you could not have legally been docked under the sick pay rules.
    3. Do you know if you are subject to the FMLA? Someone else will have to walk you through those rules. But basically there is a FMLA exception under 541.602.
    4. Past that it gets interesting. Changing an employee previously Exempt Salaried to Non-Exempt Hourly on a go forward basis is not inherently illegal. Changing them back and forth is. So if the change is permanent, and you do not get flipped back when the medical issue is resolved, then is is likely (but not certain) that no law was broken. If instead you get flipped back, then it is likely that the salaried basis was violated (assuming that the FMLA exception in 541.602 was not in play).

    A lot of this stuff is not so much "what" was done but rather "how" it was done. Meaning that there sometimes is room for lawyers to argue things either way. Meaning that different judges can sometimes look at the same facts and come up with different conclusions. Smart employers try pretty hard to make it very obvious that they are in compliance with the law to give judges very little room to decide that they (the employer) is not in compliance. Your employer does not sound very smart so far.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      Thanks for your response.Very helpful! I've been doing a lot of research to find uot if i was ever legally exempt. I'm a chef and the head of a department for in a market. I do not hire, fire, schedule, or even get a say so on what they do. I do manage several people.

      FMLA I'm familiar with this act and yeah i would of qualified, but i never filled out any paper work or requested to be put on it, and they didn't tell me too. They knew in advance i was having surgery and told be to get it done fast so i could be back to work for the holidays.

      Thank you so much! I'm really upset that they can/are doing this to me. I would just to nail them. They treat all their employees badly.

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      • #4
        1. I am not a FMLA expert, and someone who is not me is going to have to walk you through it. I can say that the types of points you just raised are likely not actual FMLA rules. Wait for another responder to walk you through the actual FMLA rules.

        2. Regarding exempt exceptions, there are something like 100 or classifications, most of which could not possibly relate to your situation. I am going to include a pointer to the so-called White Collar exceptions, particularly Administrative, Executive and Professional. You need to look at those. I am not particular expert in the classification of people who do things with food. I will say that if I was your employer I would try really hard to make Executive work. Admin is possible and Prof is possible, but both are harder. Maybe a lot harder. I know that someone who flips burgers at a fast food restaurant is non-exempt while someone who learned to cook in France and is head chef at a 5 star restaurant likely could fall under the Professional exception, but I have no idea just where the line between those two conditions is drawn. The Executive exception however is simple to understand and support where applicable. The Administrative exception less so, and the Professional much less so (at least as far as cooking food is concerned). The employer gets to choose which exception (if any) that they wish to support and smart employers choose easy exceptions to support.
        Last edited by DAW; 11-26-2009, 11:03 AM.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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        • #5
          Originally posted by True5683 View Post
          I'm a salary "allegedly" exempt employee, the company i work for offers no vacation time or sick days. I've worked so much overtime, I'm required to work 50 hours a week but, really I've rarely worked less than 60-70, sometimes more. I had back surgery and returned to work today after 2 weeks off and was told i was being switched to hourly due to the the doctors note that stated only that i could not exceed 8 hours a day.

          Is This Legal?
          I've given them Hundreds of free hours and now because i'm not supposed to work more than 40 hours they are taking away my salary this just seems so wrong. Please I need advice.
          That could be legal but I would be hesitant to say for sure. I like the free legal advice which can really help with that!

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          • #6
            Relative to FMLA, I can tell you that the law requires the employer to provide you with the appropriate paperwork if they know or suspect that an absence is FMLA-qualified. Having said that, since you say you know about FMLA, I'm wondering why you didn't ask for the paperwork yourself.
            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
              Minor hairsplit; there is nothing in the FMLA statute that specifically requires paperwork. What the law requires, specifically, is that FMLA protections be provided when the employer knows or has reason to know that you have a medical condition that may qualify. As long as the FMLA protections are adhered to, it is not technically a violation of FMLA for them not to provide any paperwork or even tell you about it.

              DOES your doctor's note limit you to 8 hours in a day?
              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
                Hairsplit noted.
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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