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Thread: I think my employer has been underpaying me Pennsylvania

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    Default I think my employer has been underpaying me Pennsylvania

    I just found out that my employer has been paying me on a semi-monthly basis. I should have gotten paid on the 15th and last day of the month. While this was not the case, I did get paid a minimum of twice per month. As I started reviewing the pay periods, I noticed they were all longer than 10 days. The employer says my salary is $22,000 or $14.48 per hour as a teacher at a private church school. I work an 8 hour day. The employer said they pay us over the course of 19 pays. When I did the math, it came out to
    1 pay period with 13 days x8=104 hours worked, paid for 80 hours each pay period
    11 pay periods with 11 days x 8= 88 hours worked, paid for 80 hours each pay period
    1pay period with 9 days x8 hrs= 72 hours worked, paid for 80 hours each pay period
    3 pay periods with 10 days x8 hrs = 80 hours worked,80 hrs paid for each pay period
    3 pay periods with 12 days x 8 hrs=96 hours worked, 80 hours paid for each pay period
    The employer has consistently paid me for 10 days per pay period which is 80 hours. However, I found information online stating that semi monthly employees are paid 86.67 hours to compensate for the fact that the number of days in a pay period fluctuate. The employer has also classified me as a salaried exempt employee. However, according to FLSA, I should be non exempt as I do not make over $23,600 per year.
    Should I have gotten paid for all hours I worked over 80 hours per pay period. If so, would it have been straight time or time and a half? My salary of $22,000 doesn't seem to work out mathematically unless I work a day or two free per pay period. Is that legal?
    I just want to be sure I have understood this correctly as I will need to present these findings to my employer. If my understandin is accurate, it will be a large sum of money owed to me.
    Thanks in advance.

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    Semi-monthly means twice a month. Bi-weekly is once every two weeks.

    Semi-monthly will result in 24 paychecks a year. Bi-weekly will result in 26 paychecks a year.

    Before going any further, which are you being paid, and which do you think it should be?

    We'll go into the other specifics later, but I need to clarify that first. It's not quite clear.
    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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    Quote Originally Posted by cbg View Post
    Semi-monthly means twice a month. Bi-weekly is once every two weeks.

    Semi-monthly will result in 24 paychecks a year. Bi-weekly will result in 26 paychecks a year.

    Before going any further, which are you being paid, and which do you think it should be?

    We'll go into the other specifics later, but I need to clarify that first. It's not quite clear.
    I am being paid semi monthly ...the 15th and the last day of the month. I am a teacher, so it is 19 paychecks. According to what I have found the calculation for semi monthly is as follows
    Weeks in the year x hours per week / number of pays.plugging in the numbers, I get
    42. X. 40. /. 19= 88.42 should have been the number of hours paid on each check. Am I totally confused on this?

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    Quote Originally Posted by Jen999 View Post
    I am being paid semi monthly ...the 15th and the last day of the month. I am a teacher, so it is 19 paychecks. According to what I have found the calculation for semi monthly is as follows
    Weeks in the year x hours per week / number of pays.plugging in the numbers, I get
    42. X. 40. /. 19= 88.42 should have been the number of hours paid on each check. Am I totally confused on this?
    I am also confused about being exempt. According to flsa exempt is reserved for employees making $23,600 or $455 per week. Since I only work 10 months as a teacher, I make more than $455 weekly. However, I do not make more than $23,600 annually.

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    You are making some incorrect asumptions.
    - FLSA has something 100 or so Exempt exceptions, only 4 of which (Adminstraive, Executive, IT Professional, Professional) have the salaried basis of $455/week, and two of those (IT Professional and Professional) do not always require a salaried basis.
    - You are apparently assuming that all Exempt employees ust be paid on a salaried basisof at $455/week and that the employer must pay you at least $23, 600 annually. These are legally incorrect assumptions.
    - Teachers are a sub-part of the Professional exception. You need to read the entire cited factsheet but i will cite the part specific to teachers.

    http://www.dol.gov/whd/regs/complian...ofessional.pdf

    Teachers

    Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in the activity of imparting knowledge, and if they are employed and engaged in this activity as a teacher in an educational establishment. Exempt teachers include, but are not limited to, regular academic teachers; kindergarten or nursery school teachers; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers engaged in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal or instrument music teachers. The salary and salary basis requirements do not apply to bona fide teachers. Having a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge includes, by its very nature, exercising discretion and judgment.
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    Quote Originally Posted by DAW View Post
    You are making some incorrect asumptions.
    - FLSA has something 100 or so Exempt exceptions, only 4 of which (Adminstraive, Executive, IT Professional, Professional) have the salaried basis of $455/week, and two of those (IT Professional and Professional) do not always require a salaried basis.
    - You are apparently assuming that all Exempt employees ust be paid on a salaried basisof at $455/week and that the employer must pay you at least $23, 600 annually. These are legally incorrect assumptions.
    - Teachers are a sub-part of the Professional exception. You need to read the entire cited factsheet but i will cite the part specific to teachers.

    http://www.dol.gov/whd/regs/complian...ofessional.pdf
    Thanks for your response, I read the fact sheet, but I am still confused. Does this mean all teachers are exempt regardless of their salary? If so, what impact does that have on my pay as a semi monthly employee? Should I still have gotten paid for 86.67 hours rather than 80. Would the exempt status mean all 86.67 would be straighttime every pay?
    Last edited by Jen999; 06-02-2012 at 05:20 PM.

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    It might be. The $23,600 limit is not universal to all exempt employees.
    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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    Quote Originally Posted by cbg View Post
    It might be. The $23,600 limit is not universal to all exempt employees.
    Is it correct to say I have been underpaid in every pay period that I was paid for 80 hours. Does the employer now owe me for (86.67-80) 6.67 hours for all 19 paychecks?

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    Not necessarily. Hold on for DAW - he is the board expert on things FLSA.
    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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    I am now talking about federal law only (FLSA). For purposes of this question, FLSA has two big rules.
    - All employees (unless excepted) must be paid at least $7.25/hr (average over the workweek).
    - All employees (unless excepted) must be paid an overtime premium of at least 50% over Regular Rate of Pay for all hours worked past 40 in the workweek.

    Those are the federal non-exempt rules. Lets say that Bob makes (in theory) $10/hr. This week he is paid nothing, but works 10 hours. While Bob will feel that he is owed $100, and he well might be, the feds are only interested in $72.50 (10 hours times federal minimum wage). Federal law is not interested in base pay over minimum wage for non-exempt employees. State law might be. Different states have very different rules.

    Now for the magic word - "Exempt". What the word means under the FLSA law is that the employee is (in theory) subject to one of the 100 or so Exempt classifications. These classifications if applicable mean that the employer has to follow each and every one of the rules associated with the classification claimed. An employer never is forced to treat an employee as Exempt, but if they CHOOSE to do so, the employer is held responsible for following each and every one of the related rules for THAT classification. There is no one-size-fits-all rule set that applies to all Exempt classifications.

    In the specific case of your Teacher sub-classification to the Professional exception:
    - Read the factsheet!!!! Make sure the duties and other test apply to you. Do not assume that someone on this board has physic powers and can do that for you.
    - If you fall under that classification, then for you Exempt means that you are still subject to the federal minimum wage rules, BUT you are no longer subject to the overtime rules. If you work 50 hours in the workweek, then you must be paid at least 50 hours times $7.25/hr for the workweek. You do not have to be paid the overtime premium.
    - Let's pretend that you fail the duties test for a teacher. Unless your employer can support a different Exempt classification, you would be non-exempt.

    -----

    I am not a PA expert. You are subject to PA law, but this is in addition to, not instead of federal law. And I have no idea what PA law is (if any).
    Last edited by DAW; 06-04-2012 at 02:47 PM.
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    Quote Originally Posted by DAW View Post
    I am now talking about federal law only (FLSA). For purposes of this question, FLSA has two big rules.
    - All employees (unless excepted) must be paid at least $7.25/hr (average over the workweek).
    - All employees (unless excepted) must be paid an overtime premium of at least 50% over Regular Rate of Pay for all hours worked past 40 in the workweek.

    Those are the non-exempt federal non-exempt rules. Lets say that Bob makes (in theory) $10/hr. This week he is paid nothing, but works 10 hours. While Bob will feel that he is owed $100, and he well might be, the feds are only interested in $72.50 (10 hours times federal minimum wage). Federal law is not interested in base pay over minimum wage for non-exempt employees. State law might be. Different states have very different rules.

    Now for the magic word - "Exempt". What the word means under the FLSA law is that the employee is (in theory) subject to one of the 100 or so Exempt classifications. These classifications if applicable mean that the employer has to follow each and every one of the rules associated with the classification claim. An employer never is forced to treat an employee as Exempt, but if they CHOOSE to do so, the employer is held responsible for following each and every one of the related rules for THAT classification. There is no one-size-fits-all rule set that applies to all Exempt classifications.

    In the specific case of your Teacher sub-classification to the Professional exception:
    - Read the factsheet!!!! Make sure the duties and other test apply to you. Do not assume that someone on this board has physic powers and can do that for you.
    - If you fall under that classification, then for you Exempt means that you are still subject to the federal minimum wage rules, BUT you are no longer subject to the overtime rules. If you work 50 hours in the workweek, then you must be paid at least 50 hours times $7.25/hr for the workweek. You do not have to be paid the overtime premium.
    - Let's pretend that you fail the duties test for a teacher. Unless your employer can support a different Exempt classification, you would be non-exempt.

    -----

    I am not a PA expert. You are subject to PA law, but this is in addition to, not instead of federal law. And I have no idea what PA law is (if any).
    Thanks! I have a better understanding now. I will be seeing a lawyer on Monday for my own peace of mind. I've had so many issues regarding pay with this employer that I am prone to believe they are doing something unfair.
    I read it and I do feel that I am exempt. If I understand ur response correctly that means when I work 104 hours in a pay period as a semi monthly employee, I should get 104 hours straight time. I would not be entitled to overtime. I have been getting 80 hours straight time semi monthly.

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    Quote Originally Posted by Jen999 View Post
    I read it and I do feel that I am exempt. If I understand ur response correctly that means when I work 104 hours in a pay period as a semi monthly employee, I should get 104 hours straight time. I would not be entitled to overtime. I have been getting 80 hours straight time semi monthly.
    Not exactly. If we are talking FLSA only, you must be paid at least federal minimum wage averaged over the workweek. Federal law does not care about pay periods per se, and does not care about base pay in excess of federal minimum wage.

    Now PA law might. Or might not. Paying an Exempt teacher a salary on a semi-monthly basis is not inherently legal or inherentl illegal. Court all hours worked by workweek, multiple by federal MW, and see if the semi-monthly wages cover that.
    "Reality is that which, when you stop believing in it, doesn't go away".
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    Quote Originally Posted by DAW View Post
    Not exactly. If we are talking FLSA only, you must be paid at least federal minimum wage averaged over the workweek. Federal law does not care about pay periods per se, and does not care about base pay in excess of federal minimum wage.

    Now PA law might. Or might not. Paying an Exempt teacher a salary on a semi-monthly basis is not inherently legal or inherentl illegal. Court all hours worked by workweek, multiple by federal MW, and see if the semi-monthly wages cover that.
    Thanks ! I will definitely do that.

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    If you are making 22 K a year as a teacher, your employer is in the clear. If you are working as a teacher I can pretty much guarantee that is the exemption they are using. It is unlikely in the extreme that you are non-exempt. Being paid 19 times a year is also pretty standard for those in education and it is entirely legal. Exempt employees are paid to get the job done, not for each hour they spend on the job.

    Forget what your pay stub says. For you, actual hours mean absolutely nothing and whatever appears under the "hours" heading on the stub is almost assuredly a default of the payroll system they use and nothing else. I too work in education and am an exempt employee and mine is likewise meaningless. This is actually true for most exempt employees. I've never seen a payroll system that left hours blank or came up accurately for an exempt employee though since you aren't paid on an hourly basis, it really doesn't matter if they put the lyrics to "In-A-Gadda-Da-Vida" in that spot.

    As for paying semi-monthly, that is entirely legal as well. I personally dislike being paid semi-monthly as it seems the actual pay dates change based on weekends and holidays. If the 15th falls on a Sunday, you will get paid either the last or next business day. Same for holidays as the banks and probably your employer are both closed. This is legal. As long as you are getting paid twice a month, your employer is legally in the clear.
    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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