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Salary Exempt employee suing for overtime Georgia

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  • Salary Exempt employee suing for overtime Georgia

    Hello,

    I have a former employee who has hired an attorney to recoup 82 hrs of overtime @ 1.5/rate he claims is unpaid. He is also askiing for damages under FLSA and attorney's fees, total of about 9k.

    Employee was salary, 52k per year. I never encouraged nor demanded he work additional hours. One Saturday I asked him to com in and I compensated him extra for that.

    Any advice?
    Thanks

  • #2
    Are you certain that he qualified as an exempt employee? Under which classification?
    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


    • #3
      His title was lead carpenter / project manager. He had supervisory responsibility, a company card and phone, etc.

      Comment


      • #4
        I wouldn't be so positive. It's not his title nor his perqs that counts, it's his primary duties.
        http://www.dol.gov/esa/regs/complian...a_overview.pdf
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

        Comment


        • #5
          There are many different possible Exempt classifications. You only need to prove that you are following all of the rules for one of them. The major Exempt classifications can be found at the following website. The "Executive" classification is the only one that cares about supervision. Company credit cards and cell phones by themselves do not mean much in terms of supporting Exempt classification. Most of these exceptions are called "white collar" exemptions and "Carpenters" per se is not generally considered to by white collar. Take a very hard look at the Executive classification rules. If you cannot make that exception work, then you might have a problem.

          http://www.dol.gov/esa/regs/complian...irpay/main.htm

          Several employers ago I worked for a manufacturing company with 1,000+ hourly production workers. People who worked in the shop but who were treated as Exempt had multiple employees reporting to them and they did nothing but supervise (sometimes not very well). Employees who both worked and supervised were treated as Non-Exempt Hourly. This was mainly a shop that worked metal, but we had a maybe 4 dozen employees who had the word "carpenter" somewhere in their job description, working for either the Traffic or Maintenance departments. Some of them were very skilled (and expensive). All of them without exception were treating as Non-Exempt Hourly.
          Last edited by DAW; 01-14-2008, 03:17 PM.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

          Comment


          • #6
            Thanks for the link. He managed projects and performed work, skilled labor. He managed helpers and subs when available and advised on hiring decisions.

            Couple of questions:
            If he is indeed owed the overtime, how can the hours be justified since they were not demanded?
            How can they be justified since they were not documented?
            What about extra amounts paid to the employee over and above his salary by the company?
            Why is the penalty equivalent to the amount supposedly owed?

            Appreciate your help

            Comment


            • #7
              Originally posted by PHS View Post
              His title was lead carpenter / project manager. He had supervisory responsibility, a company card and phone, etc.
              Uh oh, gotta agree with DAW. Lead carpenter = blue collar. Your only salvation will be under the executive exemption. If the employee is not legitimately exempt, then you may owe overtime.

              Your approval or encouragement of the overtime is not necessary. If it was worked, it must be paid, if the employee was non-exempt.
              Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

              Comment


              • #8
                Below are the Executive requirements and my attempt to justify them

                The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;
                ***Yes 52k per year***
                • The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
                ***Managed key projects***
                • The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
                ***Supervised helpers when available, supervised subcontractors when onsite and handled inspectors***
                • The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
                ***Recmmended hire of employee, proponent for that employee to become team member. Advised on continuing employment status for other helpers under his supervision. ***

                Employee was hired to manage subs and employees and perform work as needed in support of company. His purpose was to be the man in charge in the field.

                Seems like a grey area, what a nightmare.
                Thanks

                Comment


                • #9
                  Originally posted by PHS View Post
                  If he is indeed owed the overtime, how can the hours be justified since they were not demanded?
                  You do not have to demand that they be worked. An employee can work overtime without demand or approval and still have to be paid for the time.


                  Originally posted by PHS View Post
                  How can they be justified since they were not documented?
                  It will be up to the court to decide what may or may not have been worked. If you had a DOL audit, the investigator would examine your records and interview employees and come up with a best guess on what may have been worked by all employees (more employees, more costs, plus potential fines).

                  Originally posted by PHS View Post
                  What about extra amounts paid to the employee over and above his salary by the company?
                  Such as?

                  Originally posted by PHS View Post
                  Why is the penalty equivalent to the amount supposedly owed?
                  That's allowed by the law. The judge does not have to award that, but it is permissible.
                  Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

                  Comment


                  • #10
                    And again, we're talking "primary" duties here. If at least 50% of his time was spent in carpentry work, you'll be hard-pressed to make an exempt classification stick.
                    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                    Comment


                    • #11
                      repsonse to "such as" followup:
                      I frequently paid him 10% or 20% additional per week. No reason, just knew he was his family's sole income and the company had some extra cash. Many of the extra payments documented.

                      Comment


                      • #12
                        Really appreciate eveyone's help here. Whole thing is hard for me to take

                        Comment


                        • #13
                          Could this law help him?

                          29CFR541.708 - Combination exemptions.



                          Section Number: 541.708
                          Section Name: Combination exemptions.

                          --------------------------------------------------------------------------------

                          Employees who perform a combination of exempt duties as set forth
                          in the regulations in this part for executive, administrative,
                          professional, outside sales and computer employees may qualify for
                          exemption. Thus, for example, an employee whose primary duty involves a
                          combination of exempt administrative and exempt executive work may
                          qualify for exemption. In other words, work that is exempt under one
                          section of this part will not defeat the exemption under any other
                          section.

                          http://www.dol.gov/dol/allcfr/ESA/Ti...CFR541.708.htm

                          Comment


                          • #14
                            I don't think so. "Combination exemptions" really have to do with combining different classifications of exempt employment, not combining exempt and nonexempt.
                            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                            Comment


                            • #15
                              Agreed with Patty.

                              http://www.dol.gov/esa/regs/complian...lue_collar.pdf
                              "Reality is that which, when you stop believing in it, doesn't go away".
                              Philip K. **** (1928-1982)

                              Comment

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