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:( TX: regarding exempt/non-exempt, commission, and uncompensated time. Texas

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  • :( TX: regarding exempt/non-exempt, commission, and uncompensated time. Texas

    This is a couple part question.

    1) I work fulltime at a law firm which does debt collection as a bill collector. Phone work, basically. I can't see any circumstances that fit me falling into an exempt status. Anything I'm missing that would make me exempt?

    2) If I'm non-exempt: Computers go down after working for 1 hour. We are kept at the office for 1 more hour unable to work. Allowed to relax, smoke, talk, etc but not leave. Can we not be paid for that 2nd hour we were not working but required to be there.

    If not could it be deducted from sick/vacation time if an employee manual stipulated that option for the employer.

    3) As I understand it TX has no mandatory rest periods so an employer COULD allow an empoyee to "work through her lunch" without being in violation of any state/federal law, correct?

    4) I believe there was some federal law that mandated a certain advance notice of future pay decreases, IE: not ex post facto. Is this so and if so would a regular commission structure consistent across a department be considered "pay" and subject to the same X days advance notice?

    Thank you for any assistance or links to relevant materials.

  • #2
    1. I don't either. I vote nonexempt. Have you asked the company what classification they are using to justify an exempt status?

    2. Is it "the computers will be up in an hour" or "we'll let you know when the computers are back up"?

    3. Correct, IF the company allows for it. If the company policy states that a meal period shall be taken, you should never skip it without the approval of your supervisor.

    4. There is not a federal law per se. There is such a law in Texas. Whether it applies to just hourly wages for time worked or for commissions as well, I am not sure. Contact the TWC.
    Pattymd
    Senior Member
    Last edited by Pattymd; 03-23-2009, 05:16 PM.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      1) I don't believe we're exempt but I need to clarify it. I know we get chinese overtime, forgive the pejorative but I don't know the actual term that would apply. I was told that is simply because there is a law, not sure if it's TX or fed, that allows 1/2 pay for overtime for commission employees just like salaried employees.

      2) It was "we don't know when they'll be up, so stick around and we'll see...
      Well it's been an hour now so go home and we'll let you know when they're up, but make sure to be available to come back in as soon as they are up. Oh and by the way, the last hour you've been sitting around talking, smoking outside, and relaxing but not being allowed to leave..., you're making that hour up later in the week, you're not getting paid for it"

      3) Thanks, I thought that was the case but wasn't sure.

      4) Again, thanks. I tried the TWC but they weren't very helpful. They couldn't even point me to the law on their webpage. I'll look around for it again. I was told by somebody I believe that the commission itself isn't something that even applies the same as hourly/salary pay and if an employer in TX fires you, etc, they can withhold it and you have to sue to get it paid as it's simply a contract matter. IE: they owe it to you per the contract but they didn't breach state law by withholding it. You seem fairly well informed, is this true in your opinion?
      Caine
      Junior Member
      Last edited by Caine; 03-23-2009, 09:36 PM.

      Comment


      • #4
        1. It's known as the Fluctuating Workweek method and here is the criteria:
        http://www.dol.gov/dol/allcfr/ESA/Ti...CFR778.114.htm

        You can read about the four exempt classifications here:
        http://www.dol.gov/esa/whd/regs/comp...a_overview.pdf

        2. "Stick around and we'll see" is known as engaged to be waiting and it is compensable time.
        http://www.dol.gov/dol/allcfr/ESA/Ti...9CFR785.15.htm

        "Leave and come back when we call you" is generally not compensable, since you are free to pursue personal activities, even if you need to return immediately when called back.
        http://www.dol.gov/dol/allcfr/ESA/Ti...9CFR785.16.htm

        4. I thought that might be the case. Generally speaking, commissions in most states are considered contractual obligations not covered under wage and hour laws.

        This is a law firm? ACK!!!
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Originally posted by Pattymd View Post
          This is a law firm? ACK!!!
          It is not all that unusual for lawyers (or accountants) to know next to nothing about the payroll rules. Certainly the ones employees have call up payroll offices do not seem to know much of anything. It is a specialty area that involves actually reading IRS publications. Most lawyers are contract law, not labor law, and the one's who actually know something about labor law probably do not do the payroll for their firms (loss of billable hours). My last two employers had in house legal departments, with 6-12 lawyers. But only one lawyer at each employer actual knew anything about labor law, and they were both considered "utility infielders", who handled all non-contract law areas including labor law. They were not dummies but they did not necessarily know as much as the payroll or HR people did on labor law issues. Of course, they had access to law libraries and both employers had outside labor law firms they used when things got interesting. In my experience, the major national labor law firms tend to be very sharp indeed about this stuff. I have several of these firms websites bookmarked because they tend to have very good articles on line.

          The following is a good article on Non-Exempt Salaried handling, including FW.
          http://payroll-taxes.com/articles/sa...ernatives.html
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

          Comment


          • #6
            Well, not quite.

            Originally posted by Caine View Post
            1) I tried the TWC but they weren't very helpful. They couldn't even point me to the law on their webpage. I'll look around for it again. I was told by somebody I believe that the commission itself isn't something that even applies the same as hourly/salary pay and if an employer in TX fires you, etc, they can withhold it and you have to sue to get it paid as it's simply a contract matter.
            Actually, commissions are considered wages in the Texas Payday Law, Section 61 of the Texas Labor Code. And, as wages, they must be paid in accordance with the commission agreement.

            There is no law which mandates any period of "advance notice". However, TWC has always taken the position that wages can not be decreased without notification to the employee of a reduction. (Interestingly, no one has ever complained of a retroactive increase.) In essence, the "X" referred to in your previous post is -zero-.

            The legal basis of this comes in the wording of the law that employees must be paid for all time worked, at the agreed on wage rate. Essentially, employees must be aware of the wage rate, and they indicate their agreement to accept the rate by working.

            The people who answer the phones for TWC are not able to give legal advice, or to "read between the lines", so they can't give you that information. They can say that you have the option to file a claim for unpaid wages if you feel you haven't been paid in accordance with the Payday Law.
            Texas709
            Senior Member
            Last edited by Texas709; 03-24-2009, 02:07 PM.

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            • #7
              Just goes to show, never believe anything anybody tells you on the phone.

              Or call 5 times and take the answer that you get three times.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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              • #8
                Good Rule to follow

                I appreciate the links.

                DAW-- excellent article that summarizes the matter very well. Appreciated.
                Patty- thank you as well for the link. It seems to be what our pay is being based on. We work 42 hours one week and 45 the next, alternating every other week. The 2 and 5 hours of overtime ARE paid at 1/2 hourly for the non-commission check. For the paycheck which includes the once-monthly commission pay the commission pay, if any, is added to the standard 1/2-your-monthly-salary figure and divided by # of hours worked and the 1/2 pay per overtime hour IS based on that, usually larger than normal, adjusted hourly rate for that pay period. In fact I know some employees try to put in extra overtime during that pay period, especially if they are expecting a large commission bonus on the check since it amps up that 1/2 pay to, quite often, even more than the standard hourly rate even at 1/2.
                Under C) in that link it states that the fluctuating workweek may be applied provided "...and the employer pays the salary even though the workweek is one in which a full schedule of hours is not worked."
                Would this then effectively mean that, while an employer COULD force us to work an extra hour to make up for that one missed, (or work two, or four, or 20 extra, whatever they chose) they would STILL have to pay for that one when the system was down since it will bring the total worked over 40 hours, even without it? (sorry if I'm getting two labyrinthine in my thinking, information overload, lol)


                I like to think that I'm fairly intelligent and savvy but I have to admit I got a bit swamped, not knowing the field, trying to look through state/federal material myself simply because of the breadth of subject matter and a lack of knowledge about which topics in the code were relevant. That equals lots of digging, little gold

                I questioned our HR person and was told we are salary, however he is unsure if we are exempt or non-exempt .... I expect your reaction will be similar to mine was which pretty much consisted of "Um.....what?"

                I'm going to ask the attorney tomorrow for clarification. A manager told me that if exempt he believes, but isn't sure, that it may fall under "clerical administrative" which obviously, after reviewing all the exempt statuses, it would not.


                My understanding to date is that "non-exempt" and "salary" are not mutually exclusive HOWEVER the salient point is the "non-exempt". If you are non-exempt then "salary" becomes irrelevant. Basically "non-exempt salaried employee" equals hourly because whether you set a monthly wage, divide it by X hours worked per month to get an hourly value per hour and deduct that from the salary amount for each scheduled hour NOT worked in the pay period or you reverse it and set an hourly rate and add it for each hour worked in the pay period; same difference.
                There is still overtime, etc,etc, all the normal regs that would apply to an hourly employee except where a state law, such as the 1/2 pay for overtime for commissioned employees, is applicable.

                Thus that hour "waiting" to see if the system came back or not would have to be compensated just as it would be for a McDonald's worker who was ALSO non-exempt but defined by the company as an "Hourly" employee instead of as "salaried" employee. Correct?


                Addendum: The employee handbook states under Emergency Closure that in the event of a circumstance beyond their control, power outage, computers down, natural disaster, etc that the office will be closed. When the office is Officially Closed no employees will be paid for that time.
                Makes sense to me obviously, and I realize that fed/state law supersedes however putting it in simply for any handbook/contract issue that may be significant. However even IN that I think the phrase "Officially Closed" is telling. We weren't OFFICIALLY closed until notice was given to leave the office because the system would not be coming up anytime soon and to check back. Official implies formal notice being given, I think most people would agree with that. Yes, probably a moot point with everything else but simply adding it in to be comprehensive. Not my field, not sure what may or may not be relevant :P
                Caine
                Junior Member
                Last edited by Caine; 03-24-2009, 07:13 PM.

                Comment


                • #9
                  I think you've pretty much got it, although commissions and half-time is a whole 'nuther story. We can talk about commissions later, OK? It's getting late.

                  Just remember, "salaried" and "hourly" are merely pay methods. Exempt or nonexempt is the key.
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                  • #10
                    Lol, understandable and appreciated. I've seen many, MANY, replies from yourself as well as some others to posts on this board and I know at least in my case the assistance is surprisingly welcome and appreciated.

                    Who'd have thunk it??? A web forum that's actually helpful and useful with people who know what they're talking about and are willing to help! Kudos, for what little it's worth.

                    I'm going to talk to the attorney tomorrow. This was a manger's call, I'm willing to be he wasn't even aware of it. He's a pretty fair and straightforward guy. I just wanted to make sure I HAD a point before making a point, lol. I hate looking like an idiot and wanted to make sure there was something valid here before bothering him about it.

                    Comment


                    • #11
                      What I meant to say was the overtime. The exception that allows 1/2 time for overtime doesn't have to do with commissions or not commissions. It IS allowed under the Fluctuating Workweek pay method; the requirements that must be met are detailed here:
                      http://www.dol.gov/dol/allcfr/ESA/Ti...CFR778.114.htm

                      I would also note that, under this method or, if it does not apply, the 1.5 times requirement must be based on your "regular rate of pay", which is your hourly rate (or the equivalent if you are paid on a salaried basis) PLUS your commissions attributable to that workweek. Hopefully, they are compliant with this regulation.
                      http://www.dol.gov/dol/allcfr/ESA/Ti...CFR778.118.htm
                      http://www.dol.gov/dol/allcfr/ESA/Ti...CFR778.119.htm
                      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                      • #12
                        lol

                        So I couldn't talk to the atty today, but I ran it by managers and was told the official reason that time was not being paid was 1) The manual says it will not be and 2) Why would we be paid? If the computers are down the office isn't making any money so why should we be?

                        My rebuttal was 1) That's nice, a manual is not an employment contract and wouldn't supersede federal law and 2) a: that's the price of business, lion's share of the profits is commensurate with lion's share of the liability/risk. b: see point #1. I doubt federal law is very concerned with their profit margin.

                        I said that I see no problem with them adding in extra hours for us to work. It's obnoxious but not illegal from anything I can see, heck if they want to add 10 hours for those missed 1 or 2 hours, I can't argue, but they'd STILL have to pay for those hours "engaged in waiting". I don't care about the $. At 1/2 time it's ridiculously miniscule, regardless, it's the principle of the matter.

                        The response was: "You're free to speak to the Big Guy tomorrow if you want, obviously. Might want to bring a box with you though. ... Just kidding, but you know how he gets."

                        I honestly don't think he even really knows simply because I don't see any attorney taking the risk of a complaint which, from employees, would have more impact than even a fed wage law violation in my opinion for something that silly. Also as I said I've always found him to be fair and knowledgeable on these matters. Not warm and fuzzy per se, lol, but up front and honest for the most part but hey, I guess I'll find out tomorrow.

                        Patty-- They are compliant. They calculate the straight time by adding base pay + commission % hours.

                        Honestly that's why I was a bit taken aback and went here to verify things; they've always been extremely on the level and compliant from everything I've seen in the past. My first assumption was that I was probably misunderstanding something or missing some loophole.
                        Caine
                        Junior Member
                        Last edited by Caine; 03-25-2009, 06:35 PM.

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                        • #13
                          Texas709 may have a better answer for you, but if you'd filed a claim with the TWC, any retaliation taken because of it would have been wrongful under the law, for which you could have civil recourse. I honestly don't know if Texas whistleblower laws protect internal complaints as well, but from this, it looks like the protection is only extended if you complain to the proper regulatory authority.
                          http://www.twc.state.tx.us/news/efte...discharge.html
                          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                          • #14
                            Big Can O' Worms

                            Originally posted by Pattymd View Post
                            Texas709 may have a better answer for you, but if you'd filed a claim with the TWC, any retaliation taken because of it would have been wrongful under the law, for which you could have civil recourse. I honestly don't know if Texas whistleblower laws protect internal complaints as well, but from this, it looks like the protection is only extended if you complain to the proper regulatory authority.
                            Excellent research, Patty, and very much on point--however... (there's always a however)

                            Texas Whistleblower laws are not enforced by the State or in the courts. The practicality of it is they may as well be nonexistent. That being said...

                            A claim to TWC may be protected under public policy exceptions to at will employment, or may not. To my knowledge, the approach has not been tested. The link provided to the TWC guidance speaks directly to a federal wage and hour claim, but does not directly address a State wage claim. (Sneaky, no?) I've heard generally competent advice that retaliation for a Texas wage claim may not be prohibited. Again, I'm not aware of any tests in civil procedures. Maybe some earth-shaking new member of the bar would like to try his/her wings, but probably not.

                            So, if the big guy says get a box, I'd prepare for employment elsewhere, and no big settlement for wrongful termination.

                            Gawd, don't you love the application of law?
                            Texas709
                            Senior Member
                            Last edited by Texas709; 03-26-2009, 06:22 AM. Reason: syntax

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                            • #15
                              Hey, there's always the public policy exception.

                              I love laws that no one will enforce.

                              Of course, the other option is find another job FIRST, then file the claim. Although Texas' SOL is only 180 days (I think), federal DOL is 2 years, 3 years if the violation is deemed to be willlful.
                              Pattymd
                              Senior Member
                              Last edited by Pattymd; 03-26-2009, 08:23 AM.
                              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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