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Exempt Or Non-Exempt...That Is The Question Georgia

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  • Exempt Or Non-Exempt...That Is The Question Georgia

    I am wanting to get your opinion on whether or not my husband should be considered exempt or non-exempt. I have read thru the DOL website and tried to get an understanding of the stipulations and exceptions to the exempt/non-exempt status but I am afraid I am missing/not understanding some of the information and that my husbands job might fall into one of the many loopholes. If you need any clarification or additional information please let me know...

    My husband has been employeed by a well known company that sells adult beverages since 11/07. His job title is Route Assistant/Route Helper. His basic job function-priovide backup to driver and/or salesperson for delivery routes. He is paid salary on a weekely basis of $375.00/week before taxes. His work days are LONG, he gets to work around 4:00am (to make sure all items to be delivered are on the truck) and sometimes does not get home until 10:00pm. The route he is assigned to is ~2 hours away from the warehouse. There are some days...few and far between...that he actually gets home arond 2:00-3:00pm (still a long day though). The average amount of hours worked in 1 week between 60-80 hours. However they only pay him for 40 hours/wk...NO overtime. He does not deliver outside the state, he does not make any sales, he occasionally will do promotion work (ie: set up company displays in grocery stores), he does not have his CDL license so he can't drive the "Big" trucks but is occasionally requried to take a small truck and make deliveries by himself. He does not receive any compensation for any deliveries, trip rates, etc. The acutal driver of the route is however compensated for driving to this route and receives % of money based on the amount of cases they deliver that day.

    So based on this if he is considered NON-exempt the company is required to pay him overtime for any hours worked over 40 hours. If so they also would owe him back pay for all overtime worked and was not paid to him.

    Or...

    Say he falls into one of the loopholes and he IS considered Exempt then his salary of $375.00/wk is not meeting the minimum salary requirement of $455.00/wk..thus a raise of $80.00/wk in addition to back pay for the amount he was not paid.

    Is this an issue my husband and I need to pursue this further or do we not have any case at all?

    THANK YOU FOR YOUR HELP AND ADVICE!!

  • #2
    There are a few obscure exceptions in FLSA I don't recall, but unless he fits one of those exceptions (and I doubt it) I cannot imagine anyone performing the kind of work you describe legitimately being considered FLSA exempt. And since he does not meet the salary requirements for exempt status, the whole thing seems moot anyway. If your husband wishes to pursue this he has the right to file a complaint with the US DOL for alleged FLSA violations.
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    • #3
      Local delivery drivers/salespersons is the one that comes to my mind.

      OP, does he also solicit sales on these stops, or just load/unload/stock in-store displays?
      Last edited by Pattymd; 06-05-2009, 06:55 AM.
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      • #4
        The following is the related FLSA regulation.

        http://www.dol.gov/dol/allcfr/ESA/Ti...CFR541.504.htm

        29CFR541.504 - Drivers who sell.
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        • #5
          Yeah, but she said he doesn't sell so that exception would not apply. And even if it did, would he still not need to meet the minimum salary requirement to be considered exempt?
          Last edited by The Masked Poster; 06-05-2009, 10:19 AM.
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          • #6
            Originally posted by The Masked Poster View Post
            Yeah, but she said he doesn't sell so that exception would not apply. And even if it did, would he still not need to meet the minimum salary requirement to be considered exempt?
            OK, then, I see it now. I'm voting for nonexempt.

            But, no, if the criteria WAS met, this is just another type of outside salesperson, which doesn't require a salary at all.

            OP, I would opine that he is owed a LOT of overtime pay. Lots, lots. He can either file a claim with the federal Dept. of Labor or file a civil suit (the former is free, the latter would require an attorney). Does he record his time at all, anywhere?
            Last edited by Pattymd; 06-05-2009, 10:48 AM.
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            • #7
              Thank You All for your quick responses. And yes the company requires him to clock-in and clock-out daily which shows the actual number of hours he was working. Unless time cards are not required by law for the company to keep for up to 3 years...or something like that beacuse I remember reading something about recordkeeping regulations and having to keep certain records for a certain amount of time.

              So it seems we will be pursuing this further. Now we can either decide to file a complaint with DOL or file a civcil suit...my question is will both options eventually end up having the same results in other words what are the advantages and disadvantages with each option that are available to us.

              Again...THANK YOU

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              • #8
                The DOL is free, but does not include damages or interest.

                A civil suit will require an attorney, but often the attorney's fees, damages, and even interest can be included in the suit.

                I would recommend a consultation with an attorney specializing in employment law (and this IS a specialization). You can call the Lawyer's Referral Service of you nearest Bar Assoc for a referral; a short consultation with an attorney shouldn't cost more than $50 or so.
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