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  • Salary Pay Laws South Carolina

    Is this legal?

    Working for a retail store in South Carolina with the title "manager"

    Duties include: opening and closing store, instructing non-manager employees what to do/what duties need done (although no reprimanding, ie write-ups), training new employees, stocking, running the cash register, customer service and sales, cleaning store

    During the "off season" (approx. 9 mos. out of the year), there are no other employees but managers, so there is technically no one to "manage"

    Agreement is 50 hours per week over no less than 6 days per week at $9.50 per hour; no time-and-a-half for anything over 40 or even 50 hours, and MUST work no less than 50 hours per week, on the clock; if 50 hours are not worked (i.e. sick time), pay will be deducted

    No breaks allowed, and no sitting allowed

    No vacation, sick days, or health benefits offered

  • #2
    And what is the question?

    If paid on an hourly basis and the employer is a covered employer nad or the employee is individually covered under the federal labor laws (FLSA) it would seems thay the may have to pay overtime, if you work over 40 hrs in a single week.

    Enterprise Coverage...


    Enterprises with
    At least two (2) employees
    At least $500,000 a year in business
    Hospitals, businesses providing medical or nursing care for residents, schools, preschools and government agencies (federal, state, and local)

    Individual Coverage:

    Workers who are engaged in:
    Interstate commerce;
    Production of goods for commerce;


    Closely-related process or occupation directly essential (CRADE) to such production; or
    Domestic service
    Engaging in “interstate commerce” which may include:
    Making telephone calls to other states
    Typing letters to send to other states
    Processing credit card transactions
    Traveling to other states

    Last edited by ArmyRetCW3; 08-08-2008, 07:10 PM.
    ========================================

    "A veteran - whether active duty, retired, national guard, or reserve - is someone who, at one point in his or her life, wrote a blank check made payable to The 'United States of America', for an amount of 'up to and including my life.'" (Author unknown)

    Comment


    • #3
      Originally posted by ArmyRetCW3 View Post
      And what is the question?

      If paid on an hourly basis and the employer is a covered employer nad or the employee is individually covered under the federal labor laws (FLSA) it would seems thay the may have to pay overtime, if you work over 40 hrs in a single week.

      Enterprise Coverage...


      Enterprises with
      At least two (2) employees
      At least $500,000 a year in business
      Hospitals, businesses providing medical or nursing care for residents, schools, preschools and government agencies (federal, state, and local)

      Individual Coverage:

      Workers who are engaged in:
      Interstate commerce;
      Production of goods for commerce;


      Closely-related process or occupation directly essential (CRADE) to such production; or
      Domestic service
      Engaging in “interstate commerce” which may include:
      Making telephone calls to other states
      Typing letters to send to other states
      Processing credit card transactions
      Traveling to other states


      Oh, sorry I thought I was clear when I asked "Is this legal?" at the top of my post. Maybe it got lost due to the smiley face being next to the type.

      "and the employer is a covered employer nad or the employee is individually covered under the federal labor laws" I don't understand what that means. I thought I was being as clear and detailed as I could be. The owner is forcing a 50 hour work week on the clock, and is paying a "salary" of $9.50 per hour, or also calls it $475 per week. If any hours are worked over 50, the paystub says "Overtime Salary" and it is rated also at $9.50 per hour. I assume the owner says he can do this because he calls the job title "manager". If 50 hours are not worked, i.e. taking a day off sick or leaving early/coming in late, the owner says pay will be docked for the hours missed or the employee must make the time up within the same week.

      This is a locally owned retail store, 2 local locations. The business does have more than 2 employees and does exceed $500,000 yearly. There are no goods produced, but as far as "interstate"... it is a vacation spot, and tourists come and buy the goods. Does this count? No travel is involved. Any "interstate phone calls" are perhaps due to an out-of-state customer calling with a question, complaint, or refund. That's about it. It's locally owned, locally run, locally managed.

      Thanks very much for your attention.

      Comment


      • #4
        Forcing a work week of 50 hours a week is legal. I have absolutely no idea where so many people get the idea that a salaried employee, exempt or not, cannot be required to work more than 40 hours per week. Regardless of the pay status, an employee can be required to work whatever hours the employer wants them to work (limited exceptions in Maine and California, for minors, and in some industry-specific situations that do not apply here). The only question is whether or not the employee must be paid additional compensation for the hours over 40.

        However, from there on, we run into problems. I cannot tell from what you say whether you are exempt or not. Obviously the FLSA applies but the job duties, as you describe them, could go either way. However, either way, the employer is doing something wrong.

        EITHER you are exempt and your pay cannot be docked in partial day increments except during FMLA and during the first and last weeks of employment (and in full day increments only in very limited situations) or you are non-exempt and you get paid overtime for all hours over 40 (not 50) in a week. The employer cannot have it both ways.

        Discuss your situation with the SC DOL.
        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.

        Comment


        • #5
          "Forcing a work week of 50 hours a week is legal. I have absolutely no idea where so many people get the idea that a salaried employee, exempt or not, cannot be required to work more than 40 hours per week."

          As I have no idea why so many forum moderators and senior members get off on patronizing posters. What you mentioned was not my assumption nor my question, but your back-handed concern for such is so refreshing in an online forum. Insert sigh and/or eyeroll here.

          My question was not only regarding a salaried work week of 50 hours per week. I understand that "salary pay" means "as many hours as an employer sees fit". BUT at the same time, and perhaps this is rhetorical, is not overtime -- time-and-a-half -- pay required for employees if pay can be also be docked per hour not worked, or make-up hours enforced for said missed hours? It's so sticky and so stupid, it's just downright impossible to figure out, and honestly seems always in favor of the employer. Talk about loopholes, for crying out loud.

          "The only question is whether or not the employee must be paid additional compensation for the hours over 40....EITHER you are exempt and your pay cannot be docked in partial day increments except during FMLA and during the first and last weeks of employment (and in full day increments only in very limited situations) or you are non-exempt and you get paid overtime for all hours over 40 (not 50) in a week. The employer cannot have it both ways."

          EXACTLY.

          "Obviously the FLSA applies but the job duties, as you describe them, could go either way. However, either way, the employer is doing something wrong."

          Yes, I agree the employer is doing something wrong, but just what cannot be deemed because of this stringed up mess of what are called "laws".


          6 days per week - 52 days off per year - 50 hrs. or more per week, no breaks, no sick days, no health coverage, no time-and-a-half, but "base rate" compensation for any hr. worked over 50. Perhaps my question should have been "What are the employee benefits of being salaried?" or, for the Forum Sarcasm Afficienado, "Who has more employee rights: American or Chinese, Russian, or Korean citizens?"

          As far as duties, I listed them in pretty good detail. I don't think it honesty matters, however, because again, these laws are so hairy, which makes this all the more frustrating and discouraging.

          I had actually already placed a call to the SC Dept. of Labor and have been awaiting a call back, due to a Mr. Vacationing Employee there (apparently no one else there besides him has the information needed to actually do their job). In the meatime, I thought perhaps at a site called LaborLawTalk.com I could find some human being who had some valuable knowledge, but the gems presented here are the aformentioned rude-slash-typical patronization, laced with some incomprehensible - almost drunken - babble with lack of any detail or substance. I could've told you exactly what you posted. I need to know substance to determine if I can and also how to hold this employer accountable, and also to determine if any back pay is owed. I - and I'm sure many other forum posters - didn't spend my time sharing personal details on a public forum to get slapped with snotty sarcasm, treated like a fool, given generic information that can be found on gov't websites, or told to go elsewhere. (Does "employee" define as "idiot" on this website, or is it a definition saved for newbies and/or perhaps anyone who is not a moderator?)

          Yeah, okay, maybe I'm taking out some frustration for every snotty online forum moderator or senior member, but, you folks shouldn't make assumptions about posters. Many of "us", for instance "I", have already exhausted search engines and web articles and websites and made the necessary telephone calls before posting in one of these things. This was my last resort.

          I probably should've known better than to look for pearls... boy, I'll bite my tongue on that one.

          Cheers.

          ~Terry in SC

          Comment


          • #6
            I think to fail to understand the totality of your situation. After coverage has been established, and based on your response, it appears enterprise coverage is applicable. Then the duties you perform is the determinative factor as to see if you are exempt (no over time pay) or non-exempt (authorized over time pay) under FLSA rules, assuming you are paid on a salary basis. There are many exemptions under the FLSA. It must also be determine how you are paid, salary of $475 or $9.50 per hr, it can not be both, plain and simple. Additionally it does not seem you have exhausted all resources that are available to you. In addition to the SC DOL there is also a federal DOL in SC, in which all this rules are applicable. I do not believe that SC DOL can help you with federal labor law or vice versa. You should check with the federal DOL-Wage Hour Div.
            ========================================

            "A veteran - whether active duty, retired, national guard, or reserve - is someone who, at one point in his or her life, wrote a blank check made payable to The 'United States of America', for an amount of 'up to and including my life.'" (Author unknown)

            Comment


            • #7
              Terry, the employer can NOT have it both ways. Either you ARE exempt or your are NOT. Paying you for hours worked over 50 indicates to me that the ER is holding that you are NON-exempt. Deducting sick or other PTO for hours less than 50 further supports this. Certainly IF they have actually brought your weekly salary under the required minimum for the exempt status, (I think it is still $455/wk), then it screams that they are classifying you as NON exempt.

              As NON exempt they are required to pay you for any hours over 40 in a workweek at a rate one and one half times the regular hourly rate. Circumventing the law the way they are indicates to me that they are either NOT very well versed in labor law, they are idiots or, so very smug they think they are above the law.

              If it is determined by the DOL, be is SC or fed, that you are non exempt you are entitled to back pay of time and one half for all hours you have worked over 40. I believe the time limit is 2 years unless it can be shown that the employer was not paying you correctly and knew that they were not acting within the law.

              In the event that DOL determines that they knew what they were doing was illegal then I believe you can go back for 3 years. There may also be some sort of fees and/or penalties added to the owed wages. I will not stand on that 2 & 3 year thing as an absolute fact and there isl little doubt someone will be along directly and correct me.

              On the flip side of course is IF it turns out that you are correctly classified as exempt then they will be liable to pay you for any "money" they have deducted for weeks you did not work the minimum of 50 hours, maybe.

              I say maybe because your base salary meets the required minimum for exempt status. IF they have paid you for working over 50 hours per week and you are classified as exempt then they may be able to use those funds as an offset for the deductions they have made for weeks under 50 hours. As exempt they are NEVER required to pay extra for hours worked over 40, 50, 60, or what ever number of hours they choose to make you work.

              DOL doesn't give a rip about PTO, be it sick, vacation, or otherwise, (beyond the bona fide sick plan necessary to use the classification of exempt. IMHO that little detail is about as worthless as teats on a bore hog in that once those days are used they still can't dock your pay except under very specific circumstances). Don't expect to recover any of the PTO they have docked you. IF you have been docked actual wages for time not worked up to the required amount of hours that is what you can expect to recover for. The DOL will only intervene if you are NOT being paid correctly based on your legal classification, exempt or non-exempt.

              Make that call to the fed DOL as ArmyRet suggested. Beyond that you may want to look to a local attorney that is versed in labor law to help you define those gray areas your employer seems to be lurking around in.

              Good luck to you.

              KM
              Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.

              Comment

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