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Moving from Non-exempt status to exempts status South Carolina

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  • Moving from Non-exempt status to exempts status South Carolina

    Hi,

    My employer recently changed my job from a local home every night job to a travel job away from home 4 to 5 nights a week. I was still a non-exempt employee.
    Employer realizing that the hours were accumulating quickly, I was asked to accept an exempt salary that was below what I was making with my overtime hours.
    I was told what the salary was, but I did not accept that salary, I said it was too low. HR went ahead and processed this change anyhow and told me after the fact.
    I do not have a degree, I at times am expected to perform manual labor. I do not have any direct reports.
    Couple questions
    1) Do I qualify as an exempt employee per labor guidelines?
    2) Can I still charge overtime being in an exempt position?

    Thanks for you help!

  • #2
    - The employer does not need your permission to change the compensation agreement. They can normally change it anytime they want, and if you do not want to work for the new compensation, you can quit. Standard Common Law rules.
    - HOWEVER, overtime is not a function of Common Law but rather the federal statutory law FLSA. All employees are subject to the FLSA overtime UNLESS the employer can prove that they are not. There are something like 100 or so exceptions to the FLSA overtime provisions. You do not supervise anyone, so the Executive exeption is off the table. One down, 99 or so to go.


    What are your actual job duties? What is your industry? Are you working for a governmental employer? Are you an employee with taxes being taken out of your check and a W2 issued at year end?
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      Moving from Non-exempt status to exempts status South Carolina

      Job Title is Construction Project Manager, but it is only a title, what I do is make sure the sub contractors we hire are doing their job. I frequently work side by side with the sub contractors to ge the work done. Industry is construction, my employer is not a government agency but we have primarily government contracts. Yes I am a W2'd employee.

      Comment


      • #4
        Flip the issue for the moment. If I worked for your employer and my boss said to make an argument that you are Exempt, I would say "ok, maybe Administrative". I am not saying that is likely but based solely on what you have just said that is the one exception which maybe, possibly might get by an Administrative Law Judge. I would look at the hard wording of the related regulation and maybe at some of the guidance and try to word their version of your job duties in such a way as to fit those requirements. Based solely on what you have said, I would like your chances better then theirs. HOWEVER, they have the same right to make a case that you do, and there is no sure thing here. You file a wage claim and it works or it does not. If you are not already doing so, start hard tracking hours worked at home. Pen and paper works just fine.

        Obvious question. Are you paid at least $455/week? If you are not, you have failed the Administrative exception test on this point. If so, then you and them are arguing job duties against the related rules.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment

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