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New York Exempt status? New York

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  • New York Exempt status? New York

    Hi all, I recently started at a new job. This past week was my first full workweek. I am a service advisor at a small repair facility. I look up parts, order parts, make appointments, take in customers, and dispatch repairs to the technicians. I work from 7:45-5 with two ten minute breaks and one half hour lunch break. I work till 5 on weekdays and work a mandatory 4 hours on weekends, I always have one weekend day off.

    My questions, I am considered salary "exempt" in my employers eyes I guess. I am paid $415 weekly, no matter that I put in over 40hours. They have not had me sign a wage agreement yet, something which my previous employer did with every pay change. I get no other compensation (I was on commission at previous employer and made more per week).

    My questions, is it legal for them to consider me 'exempt' with my duties and pay being what they are? Are they required to give me a lunch break or rest break? Are they permitted to make me work 6 days a week with the same $415/week pay? They are talking about extending the hours worked on weekends and frankly I feel a little blindsided by the things they promised versus what they have actually done. I was on unemployment for a month and was so eager to get a job. Things in this first week have raised many red flags and the confusion about my pay and overtime has only complicated other issues I have with the company's integrity and ethics.

    I was hired on as a non manager. I still have the original ad from the department of labor website.
    Last edited by adirondack; 10-21-2012, 09:52 PM.

  • #2
    Short answer is that you are not Exempt. You fail the $455/week minimum salary test for an employee that is both Exempt and paid on a Salaried Basis under the federal FLSA law.

    Longer answer is that the default is non-exempt, someone who is subject to the normal minimum wage and overtime rules. There are something like 100 or so Exempt classifications in the federal FLSA law. These exceptions are based on job duties and sometimes industry classification. Exactly four of these Exempt classifications have a Salaried Basis requirement (Administrative, Executive, IT Professional, Professional), and your salary is too small to qualify for any of those even if you meet the duties tests. Take a look at the following, especially the Admin and Excec exceptions.
    http://www.dol.gov/whd/regs/complian...a_overview.pdf

    If your employer is an auto dealer (as opposed to a non-auto dealer repair shop), then you might be subject to the Auto Dealer exception as a so-called "partsman". The problem is even if this is true, you are still subject to federal MW of $7.25/hr.

    A salary is just a payment method. Paying someone a salary by itself does not make one Exempt. Falling under a specific Exempt classification might impose the Salary Basis requirement as one of several requirements. Based solely on what you have said so far, even if you were paid $455/week, unless you supervise people, you are not likely to meet the duties test of any of the four mentioned classifications.
    Last edited by DAW; 10-22-2012, 08:06 AM.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      If you are earning $415 weekly then you are non-exempt by definition. It is not possible to be exempt with a salary of under $455 a week under the so-called white-collar exempt statuses. Nor, IMO, does the work that you are doing qualify as exempt.

      They are not required by law to offer you a wage agreement, nor does the law require that you receive commissions.

      As a non-exempt employee the law requires that you be paid minimum wage or more, plus overtime at the rate of time and a half for hours over 40 in a week. By my math (and anyone who chooses is free to check me) you are working 47.75 hours per week. Again by my math, minimum wage times 40 hours is $290; time and half minimum wage for 7.75 hours comes to 84.28. So for the hours you are working, the minimum you would need to be paid is $374.28. You are receiving more than this, so at least under Federal law (and I know of nothing in NY law that is different) you are being appropriately paid.

      If your hours are increased (which IS legal) and the $415 no longer covers 40 hours at m/w and the hours overtime you are working, you would file a complaint with the NY DOL.

      Bottom line; your employer is wrong to consider you exempt, and he clearly does not know the requirements for exempt payments, but at the present time the pay you are receiving is within legal limits for the hours you are working.

      If DAW or one of the other payroll folk disagrees with me, I defer to them.
      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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      • #4
        New York's min. wage is $7.25 - same as federal min. wage.
        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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        • #5
          Just for clarification sake but are you receiving $415 a week net or gross? The law requires $455 gross, but your net can be well under that amount once madatory deductions are made.
          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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          • #6
            Originally posted by ElleMD View Post
            Just for clarification sake but are you receiving $415 a week net or gross? The law requires $455 gross, but your net can be well under that amount once madatory deductions are made.
            $415 gross. My take home pay is less by a fair amount.

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            • #7
              Ok - then you are not getting paid enough weekly to be exempt.
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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