Salaried Employee in Illinois not getting paid

[rrailis]

I am a National Account Manager for a small company in Illinois. I'm a salaried employee and do not receive overtime pay. Also, If I need to leave early or I am sick my pay is docked for the time I take off.

This past Thanksgiving I was told that the company was closed on Friday, the day after Thanksgiving, and I was not going to be paid for that day. A company choosing to close and not paying their employees just didn't seem right. So I asked if it would be possible to come in so I don't lose a day of pay and my boss just laughed and said "no".

Today I was told that my company is now closing down Dec 25 (for maintenance) and will not reopen until Jan 5. Again, I will not be paid, outside of Christmas Day and New Years Day.

I'm hoping that someone can tell me if this is legal? If not, where can I go for help? I have tried the Dept of Labor but that was a waste of time. They referred me to the Dept of Wage and Hour who told me I had the wrong area but could not tell me where else to go.

I've been fighting for pay since Memorial day when I was told that I would not be paid due to my probationary period not being over...all though at my start date 2 months earlier, I was never even told there was a probation period.

Also, I forgot to add...I was told that I would receive 5 day vacation after 1 yr, but was told I do not have any accrued time as of yet, 9 months into my job. That also doesn't seem right. Shouldn't I have some time in that can be used for company closings?

Please help!

Rob

[cbg]

Salaried is only a pay method and means nothing by itself - it is exempt or non-exempt status that matters. Both exempt and non-exempt employees can be paid on a salaried basis.

Your employer cannot have it both ways. If you are exempt, there are no circumstances whatsoever in which you are entitled under the law to a single penny over and above your regular salary; however, your salary can only be docked under very limited circumstances, i.e.:

1.) It is the first or last week of employment and you do not work the entire week
2.) You are on FMLA
3.) Your employer offers a reasonable number of paid sick days and you call in sick when you either have used all the time available to you or you are not yet eligible for any
4.) You voluntarily take a day off for personal reasons
5.) You are suspended for a major safety violation
6.) You are suspended for the violation of a written company policy which applies to all employees and which relates to workplace conduct

In the cases of 1-2, pay can be docked in either full or partial day increments - in 3-6, it can be docked in full day increments only. In all six cases, you can be required to use vacation or other paid leave with or without your permission.

There are no other circumstances under which an exempt employee can be docked.

However, if you are non-exempt, you never have to be paid for time you do not work, with extremely limited circumstances in a small handful of states. Illinois is not one of those states. However, if you work over 40 hours a week, you must be paid overtime.

If you are exempt, then when you leave early you must be paid, although the pay can be taken from your leave balance with or without your consent. If you are sick and take a full day off, whether you must be paid depends on the employer's sick leave policy. If the company is closed, the only way they can legally NOT pay you is if you do no work at all during the entire week.

If you are non-exempt, then you have no legal expectation of being paid when you do not work. However, you are legally entitled to overtime if you work over 40 hours in a week.

With certain exceptions in CA, the law does not dictate to the employer how you must accrue vacation. It is up to the employer's policy whether or not you accrue time during the first year of employment.

[rrailis]

Thank you very much for your reply...Can you pls explain your comment:

If the company is closed, the only way they can legally NOT pay you is if you do no work at all during the entire week.

If my company closes on Dec 25 thru Jan 2, returning on the 5th, I will have to be paid for the whole week of the 25th (since I will work Dec 22, 23, and 24). But I do not have to be paid the following week because my company will be closed Mon-Fri allowing me no possibility of working at all during that week.

Do I understand you correctly?

Lastly, is there anyone I can contact should my employer not be receptive to paying me the time owed?

Thank you,

Rob

[DAW]

Assuming that you are Exempt Salaried, then you are subject to the 29 CFR 541.602 regulation which restricts the docking of salary for Exempt Salaried employees only. The restrictions are based on the workweek, which may or may not be the same as the calender week.

Assuming that instead you are Non-Exempt Salaried, then generally you must be paid overtime but can have your base salary docked for any time missed.

I read CBG's answer as saying that your employer was failing to follow either set of rules, and it was not certain exactly which classification your employer thought you were under. Most employees in this situation would try to argue that they are legally non-exempt and file an overtime claim.

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Your resolution methods include:
- File a wage claim with your state's DOL.
- File a wage claim with federal DOL.
- File a small claims court action.
- Talk to a local attorney about filing a general court action.

[rrailis]

Thank you for all of your information. This gives me enough information to initiate talks with my employer, as well as some options in case these talks turn sour.

Thanks again,

Rob