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Is this a pay classification change after return to work post-accident?

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  • Is this a pay classification change after return to work post-accident?

    My husband began working for a new auto repair company in mid-September. He does service writer type work and also runs errands/drives customers. This is a local family owned business. No initial benefits. Salaried with annual salary. Was being paid twice per month, on 16th and 1st of each month. Payperiod runs 1st-15, 16th-30th/31st.

    A little more than 5 weeks after he started, my husband was involved in a non work related accident. After a hospital stay, he had been recuperating at home. He is still undergoing treatment and has to wear a cervical thoracic brace 24/7. He is unable to drive. He worked 7 of the 12 days in the payperiod in which the accident occurred and was paid half his normal bi-monthly salary.

    My husband was released to go back to desk work as long as he could tolerate. He spoke with his employer about coming back for 4-5 hours per day to do the desk portion of his job; he would be unable to do the driving portion of the job. His employer agreed to him coming back.

    My husband has worked 7 of the 11 days in the past payperiod and should receive his first paycheck today after having returned from the accident. He was told he is being paid for 5 hours per day for every day he works.

    Can a normally salaried exempt employee be changed to an hourly employee? I may be overthinking this. Perhaps they are treating him as a pro-rated salaried employee? Does that scenario exist?

    My initial thought was that he should not be exempt to begin with, but historically he's worked as a service writer for trucking repair & sales companies and has always been exempt. So I just figured he would be exempt in the new job, although he was doing more road-running than prior positions.

    This is a mom & pop place, so they don't have a formal HR, Accounting, etc. It's the mom who does the administrative paperwork.

    Just looking for some helpful insight, as you've provided in the past. Thank you in advance!

  • #2
    There are only two employee pay statuses; exempt and non-exempt. Not all salaried employees are exempt; not all exempt employees are salaried.

    However; it is always legal to pay an employee as if they were non-exempt. He may have been salaried non-exempt all along, or it may be that the part of his job that made him exempt is the part that he is no longer able to do; we don't know. But even if he were being treated as exempt before, it is always legal to treat an employee as if they were non-exempt; the reverse is not true.
    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
      Thanks for the reply. I think I get what you are saying.

      I suggested he ask for clarification of his exempt status pre accident. I believe he was being treated as exempt as he often worked 11 hour days with no extra pay. Seems he is being treated as hourly exempt now as he is not getting payed for hours worked in excess of 5 hrs per day and not being docked for working less than 5.

      Is it possible to prorate a salary exempts pay?


      • #4
        What CBG said. It is possible for any employee to be non-exempt. Microsoft can make Bill Gates non-exempt if they felt like it. It is not possible for all employees to be Exempt. The phrase "exempt" means exempt from the minimum wage and/or overtime requirements of the FLSA law. There are 100 or so Exempt classifications defined in FLSA, only 4 of which have a "salaried basis" requirment.
        - If the employee is both Exempt and subject to the salaried basis requirement, then and only then is the salary subject to the 29 CFR 541.602 docking restrictions. If all of these things are true, and if the employee is on FLSA, then that is the exception that the employer is likely using.
        - The employer can change an employee from Exempt to non-exempt on a go forward basis legally. They cannot legally flip the status back and forth to avoid payments.
        - Not all Exempt employees can legally be paid on a Hourly basis. This depends on the classification.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)


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