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  • Another Update

    Husband's employer is wanting to say that he should be paid according to the Belo Plan (1/2 time) figures. (Yes patty, you spoke about employers doing this on the other site I posted on.) Husband verbally agreed to be paid $400 a week for a 50 hour workweek upon hire (June 10, 2004), however there was never a written contract stating such, nor a collecive bargaining agreement. His hours never flucuate greatly below 40 hours per week. In reading up on the Belo plan, the one thing that sticks out at me is 29 U.S.C. 207(f) and the pertinant part bolded:

    "(f) Employment necessitating irregular hours of work
    No employer shall be deemed to have violated subsection (a) of
    this section by employing any employee for a workweek in excess of
    the maximum workweek applicable to such employee under subsection
    (a) of this section if such employee is employed pursuant to a bona
    fide individual contract, or pursuant to an agreement made as a
    result of collective bargaining by representatives of employees, if
    the duties of such employee necessitate irregular hours of work,

    and the contract or agreement (1) specifies a regular rate of pay
    of not less than the minimum hourly rate provided in subsection (a)
    or (b) of section 206 of this title (whichever may be applicable)
    and compensation at not less than one and one-half times such rate
    for all hours worked in excess of such maximum workweek, and (2)
    provides a weekly guaranty of pay for not more than sixty hours
    based on the rates so specified."

    His duties do not require irregular hours of work. He is written into the schedule for 10 hours on his 5 days to work (7 AM to 5 PM). Heck, HE is the one that makes the schedules out! So he wouldn't meet this requirement at all. Shoot, he doesn't meet the requirements of any of those listed except that his pay was over minimum wage.

    Another thing that you mentioned to me patty, is that this can not be applied retroactively. They are wanting to calculate the past 14 months of overtime due using the Belo plan formula. Stating that yes, he worked 50 hours a week and was paid at a rate of $8 an hour for those 50 hours and he grossed $400 a week. This is true, that was his hours worked and that was his gross. I won't even get into the fact that his pay stubs reflect a 40 hour week at $400 which is $10 an hour and how I think they were/are trying to circumvent something else by saying he only worked 40 hours when he really worked 50. But, they are saying that the time and 1/2 which is $12 an hour shouldn't be paid at that full rate as he was already paid $8 of the $12 for those 10 hours of overtime per week. In short, they're saying they already paid the "time" part of time and 1/2, all they need to now pay is the "half" part of the $12/hr OT rate which is $4 an hour. This is the calculations based on what they want to pay, and what he would be paid at the full time and 1/2 rate.

    $4 an hour OT rate for 10 hours per week = $40.00 per week OT due
    $40 x 59 weeks (number of weeks OT pay owed) = $2760.00 owed by employer.

    $12 an hour OT rate for 10 hours per week = $120.00 per week OT due
    $120 x 59 weeks = $7,080 owed by employer.

    A difference of $4,320 in back wages. Seems to me they might be trying to use the half time calculations to pay the cheaper rate.

    Would $7 grand come in handy? You bet your patootie it would! However, he only wants what he is entitled to, whether it be the half time rate or the full time and 1/2 rate. He's trying not to torque off the owners of the company and take a chance of losing his job, but this is really stressing him out. He's also worried that they might drop him to an hourly employee, pay him the $8 an hour, and keep his hours at or below 40 a week to keep from paying him overtime. If they do that, he'd be taking an $80 a week paycut because he wouldn't be guaranteed that $400 a week salary anymore and would only gross $320 a week.

    I tried to explain to him that they couldn't pay him under the Belo plan because he doesn't meet the requirements of it. He insists that's what they're wanting to do... only pay him half time for OT already worked. He's ready to just say to heck with it and take the lower rate, get his backpay, and not have to worry about ticking the owner off and getting fired. Can't say that I blame him because if he loses his job we lose everything. He's really trying to not take this to the DOL because he's afraid he'll lose his job. Yes, I know that a wrongful termination suit could then be brought, but that still doesn't pay the bills while he waits for it to be heard.

    Is there any other way besides the Belo plan that an employer can legally pay half time to a salaried non-exempt employee working 50 hours a week? And can they now say they will continue to pay him his regular salary and then OT under this half time formula?

  • #2
    Generally speaking, no, there is not. And, they can tell him anything they want, it's just a matter of whether or not such a payment plan would be compliant with state and/or federal law.

    I don't know how to advise you, because it is pretty clear that your husband does not want to take the chance of being fired for reporting this violation, although he could then file a wrongful termination suit. But that would take time and money which he appears not to have.

    All I can do is tell you that I'm 99.99999% positive that he is owed back wages.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


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