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Exempt if you have less than 10 employees? Colorado

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  • Exempt if you have less than 10 employees? Colorado

    I work for a small web hosting company, 6 employees total. I am the support manager and a tech as well.

    My CEO now wants me to make up job postings so we can hire a few more techs and attempt to go 24x7 on our support. He wants to hire these guys exempt as well. Again, set shift hours, and they will not be making independent company decisions. They will have to follow strict guidelines, company procedure, etc (one of my job duties is to make all this as well).

    My CEO says they can be exempt because we're a company with less than 10 employees. I can't find anything in the law so I'm asking here. I think I grasp the difference between exempt and non exempt. I think I may fall into non exempt but I'm not going to push it.

    But I don't see how we can hire low level tech support on salary, demand overtime (looking at a 42 hour work week) and they won't be making independent company decisions or classified as administrative, professionals etc. They're simply tech support, like what you get when you call Dell.

    If anyone can give me some more information, or if you know about a company with less than 10 employees exemption from labor laws please let me know. Thanks for any help and sorry to bring up the age old exempt/non-exempt topic. I know its been hashed out here a lot, I just haven't seen anything specific to less than 10 employees can claim everyone is exempt and pay salary.

    these employees will not design or implement systems. They are simply help desk support. They may install some web apps but will not program or design anything.
    Last edited by mindaugas; 05-05-2008, 04:54 PM.

  • #2
    The number of employees you have has nothing to do with exempt/non-exempt status. There is no exemption for "less than 10 employees".

    IF the company grosses under $500,000 annually AND engages in no interstate commerce whatsoever (you never make as much as a phone call or buy so much as a straight pin out of state) then they are not subject to the FLSA. It is VERY rare that a company meets both these criteria, but it happens.

    I can't think of any other way he can avoid paying these employees overtime unless he never allows them to work over 40 hours in a week, or (in your state) 12 or more 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.


    • #3
      I'm in agreement and just added this to my post as well.

      these employees will not design or implement systems. They are simply help desk support. They may install some web apps but will not program or design anything.

      I think I may be non exempt as well, except I manage one other employee. but that only started a 3 months ago. otherwise I was the lone guy doing support for the company and some other system admin tasks. I have never received a dime of OT pay.
      Last edited by cbg; 05-05-2008, 05:11 PM.


      • #4
        If you do nothing else, keep track of your actual hours worked at home. Do not use company equipment to do so. A paper notebook works just fine. Being exempt from FLSA is not impossible, but it is also not very likely. The interstate commerce rule is actually determined for each person separately and not company wide.

        Also states can have their own overtime rules unrelated to FLSA, and Colorado has daily overtime rules. I do not know if they have their own weekly overtime rule, but there is at least a chance that you would covered by CO rules even if you are exempt from FLSA.

        You might also want to check the Adminstrative exception. Just because you work with computers does not mean that the employer is forced to look at only that exception. Managing only one other employee takes the Executive exception off the table.

        Past that you either file a wage claim or you do not. You could in theory wait a while to make that decision. Just make sure that you start documention now.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)


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