Avoiding Paying Overtime

[tylaamie19]

I am currently working for a company in Atlanta Georgia providing the services of professional industrial cleaning...(i.e., offices). During the last few months of the year, our workload picks up dramatically and there is opportunities for quite bit of overtime.

Knowing this. What my employer has done this year is to put us on all what they consider "Percentage Pay". What this means is that we (entire teams), get 18% of the total amount received for each job. This means, that 2 to 8 guys could be splitting this 18%.

Now how they achieve this is by adjusting your hourly pay rate to accommodate this 18% of what they say there are making on each job. We as employees never get to see invoices and therefore never actually know how much money is being paid for each job performed. Also by us being on this "percentage Pay", there is no opportunity for overtime....AT ALL!

Currenlty I am scheduled to work the next 14 days (straight) knowing I will not be paid any overtime, because my pay will be adjusted according to what they feel I should be paid based on this 18%......Is this legal?????

[LConnell]

It is legal so long as you are making a wage at least at minimum wage levels and you are receiving overtime (assuming that you are non-exempt). Your employer cannot deny you overtime as a non-exempt employee. They must also keep records of the hours you are working.

Percentage pay is sometimes used with owner operators in the trucking industry. Is your employer treating you as an independent contractor, rather than as an employee? If so, that may be illegal as well.

Let me know more about your situation, so that I can provide additional guidance.

[tylaamie19]

When informed we would be going to this “Percentage Pay”, it was not an option. They dictated that for the next 3 months, this is how we would be paid. Now, they selectively put one or two employees on “salary” while still providing them the option to make overtime. As an employee, this makes me suspicious! I just feel as though they are trying to get away with something. .

How could they make a decision to pay us this way only during our busiest time of the year? We are scheduled to go back to our regular pay in January.

I'm not sure if "for the books", they are treating us like independent contractors. they schedule work for us indicate on the books that it will take 2 hours and it takes 8. They then have us go to the next job scheduled which may take another 5 to 6 hours. With a schedule like this…how could we not be making overtime?

I have a plan for the next 14 days. At the end of each work day, I am having my supervisor sign off on the number of hours I work. But I’m not sure how to calculate (using Percentage Pay), if they are paying me accordingly if my pay rate is being adjusted!

Also - can they force us to work 14 days straight without providing a day off?

[LConnell]

Yes, they can require you to work those days. Some states require days of rest. Georgia isn't one of them.

Rather than put yourself into a precarious position of investigating your own employer, I strongly suggest that you contact the Georgia Department of Labor to ask for their assistance. I couldn't find any information on filing a wage claim in the state of Georgia and the federal DOL does not accept wage claims. However, the Georgia DOL may be able to point you in the right direction. If they are able to help you, please let us know so that we can help other Georgia employees.

Good luck and let me know if you have any other questions.

[LConnell]

I found the link to file a complaint with the federal wage and hour division. It is at: http://www.dol.gov/esa/regs/complian.../complaint.htm

Good luck and let me know if you have any other questions.

[thippy]

Hello:

I am new to this site looking for information. I am also in the trucking industry. I am a company driver for a trucking company with about 300 drivers. About 200 of them are considered over the road and work by the mile. The rest of us are local drivers and punch a time clock, the same time clock that the office employees punch. The company says they are exempt from paying us overtime pay even though they require us to work 60+ hours per week. The office employees get overtime pay after 40 hours. We are strictly hourly employees. How is this allowed? Thanks for your help.

[AndrewAK]

TYLAAMIE19

If I understand your situation correctly, your employer has moved you and your coworkers to a payroll system based on a percentage they get from the client. So, in affect they are not paying you by the hour. Do you punch a time clock? Lconnell is correct in that your employer must keep record of the hours worked by employees. It seems odd to me that your employer pays you and your coworkers this way.

Unless your employer charges each an every client the same amount for you and your coworkers to clean their facilities, you and your coworkers do not qualify as exempt salaried employees.

Here is my point: In CFR 29 Part 541.602(a) it states, “An employee will be considered to be paid on a salary basis if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of the work performed.” It further states that, “…an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked". And finally it states that, “An employee is not paid on a salary basis if deductions from the employee’s predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business. If the employee is ready, willing and able to work, deductions may not be made for when work is not available.”

Now, I find it odd that your employer pays you and your coworkers a percentage of what they charge their clients. If client one is charged $X for the services of your employer, by your explanation, your crew is paid .18 x $X. Now if there are five people on your crew this comes to (.18 x $X)/5 for each crewmember. Now, if Client two is Charged $Y for the services of your employer and $Y is greater than or less than $X, the amount of compensation for each crew member doesn’t meet the criteria of a predetermined amount of compensation because the compensation each crewmembers gets fluctuates based on how much each client is charged. So, the way I understand your situation and the way I read CFR 29 Part 541.602(a), you and your coworkers cannot be considered exempt employees paid on a salary basis. The only other alternative is to pay you and your coworkers hourly, which automatically disqualifies you from consideration for exemption.

Find out what you can do to file a claim with your State’s Board of Labor. I’d consider getting your coworkers together and file a class action.

[ArmyRetCW3]

I beleived the form of payment could be consider a commision payment, in which overtime may be applicable, if the employer is a retail or service establishement. In the way the ermployer dictated the paymnet to be made, the employees had no word, it does not appears that the independent contractor designation would be applicabvle to the employees. If over 40 hrs is worked on a regular basis the federal DOL should be contacted, for further analysis and possible Wage Hour investigation.

[Threegirls]

What is the difference between exempt and nonexempt employers when it comes to overtime pay?

[cbg]

That's what an exempt employee means - they are exempt from overtime pay.

In other words, a non-exempt employee must receive OT when they work over 40 hours a week (in a VERY few states, over 8 hours a day). An exempt employee is never legally entitled to overtime no matter how many hours they work.

[Threegirls]

What determines you to be an exempt or non-exempt employee?

[cbg]

Your job duties.

[Pattymd]

http://www.dol.gov/esa/regs/complian...a_overview.htm