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Employer wouldn't pay overtime but fired for not working overtime North Carolina

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  • Employer wouldn't pay overtime but fired for not working overtime North Carolina

    I first asked a question about a year ago - employer said my brother was salary but by law he was a non exempt employee who was entitled to overtime. The employer would continually have my brother work overtime, but said he was salary and expected him to put in more than 40 hours and said he was salary so he wouldn't have to pay him overtime. My brother has put up with this for over a year because he couldn't find another job to go to. My brother recently with a few months stopped working very little overtime at all because he would never get paid for it and was tired of being manipulated. The employer had asked my brother to come in and work on a Saturday (his normal job is Monday - Friday) to make up for being off on New Years Eve (some salary position huh? the employer had even shut down the company for that day - he wouldn't even pay that right either) - anyway my brother hurt his back a little and ended up calling in on that Saturday - the employer has been mad ever since and treated him cooly and avoided him. Anyway a week had passed with the employer being mad and he called my brother on a Friday evening and told him that he was going to lay him off in two weeks. A few days after the employer told my brother this the employer hired another person to come in and do some of the things that my brother did. I know that North Carolina is an at will state but the employer has told his other employees that the reason he replaced my brother was because my brother only worked from 7:55 a.m. until 5:00 and that the new person would work 60-80 hours a week (he will end up doing the same thing to that person). So basically he fired my brother for not agreeing to work overtime and not be payed for it - Isn't there something that my brother can do? He is going to call the Labor Board and file a complaint to recover his overtime that he kept record of and the employer did not - but can my brother file a wrongful termination suit for being "layed off" he told my brother another reason but is telling his other employees the real reason?

    Sorry this is so longwinded - I am just so tired of that employer using and manipulating people just to get his way - I worked there at one time and quit because of the manipulation.

  • #2
    No, this is not wrongful termination under the law, because there is no law that prohibits firing an employee for refusing to work overtime.

    They are two separate things. You can be fired for refusing to work overtime. IF you work overtime and are not paid for it when the law requires you to be, you file a claim with the state Dept. of Labor.

    This company sounds like a real piece of work that is either ignorant of the law, or thinks that nobody will call them on it.
    Last edited by Pattymd; 01-27-2008, 03:23 PM.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      No wrongful termination, but your brother should either contact the Department of Labor and file a wage complaint for the unpaid overtime OR get an attorney and file a suit in state or federal court. The advantage to the latter route is that, if successful, the court may award, in addition to backpay (with interest), liquidated damages equal to the backpay, attorney fees and court costs. Under NC law (http://www.nclabor.com/wh/Wage_Hour_Act_Packet.pdf), the court won't order the liquidated damages to be paid if the company can show that it acted in good faith and had reasonable grounds for believing that it was not violating the law. I seriously doubt this particular company will be able to make such a case and any attempt to do so will either get stares or laughter.
      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.

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      • #4
        Overtime pay

        I was the office manager at the time. When the overtime issue came up I posted a reply on here and asked for your opinions - I still have a copy of my statements and your replys dated 01/06/07. When I told the employer about this (over a year ago) he told me that I opened up a can of worms, and he was going to have to cut my brother's pay to make it equal out - cut his pay to whatever and when you added his overtime it would still be the amount that he promised my brother every week ($600.00) - after he made that statement, my brother never pushed it and continued to work whatever the employer asked him to, until a few months ago - my brother finally had enough and just started leaving at 5:00 (occassionally he would still stay if something needed to get done.)

        I read somewhere that if you filed a complaint with the labor board, and they weren't able to get a settlement for you, you could then file with State or Federal and try, but if you went to court first and lost - you couldn't come back to the labor board for help - My question is - if you decide to first go to the labor board - will they be able to ask for interest and liquidated damages along with the back overtime pay or do you have to hire an attorney to get everything that you might be entitled to?

        I really appreciate your input - I just can't believe this person gets by with the things that he does - I quit because he tried to manipulate me into going full time - told me that he was going to pay someone a lot more than me to do my job, offer benefits and told me that he didn't have a crystal ball to look in to see what I would be doing (the sad thing is that he really didn't need someone full time to do the things that I did part time - it was all just about him trying to manipulate. And to top it off - he tried to do some things to me sexually - that I still can't believe he tried. I never did push the issue when I left - because my brother still worked there and I didn't want him to have any retributions. This employer is fully aware of the things that he does.

        Again I appreciate your help.

        Comment


        • #5
          Employers get to set the hours. Period. If someone isn't being paid properly, their recourse is to file a claim for unpaid wages. Just refusing to work the time is not an option and most employers would just fire the person outright. Lowering someones rate of pay to account for OT within the budget is legal so long as they are still receiving at least minimum wage.

          If you lose a wage claim in court, there isn't anything for the labor board to pursue. Same goes for filing a claim with the labor board and having them find no cause. There really isn't anything to pursue in court then. You can talk to a lawyer but don't expect much.

          It is not illegal to push you to work FT. That is entirely legal as once again, the employer is the one who sets the hours.

          Not sure why you suddenly threw in the sexual aspect here. Depending on what he did and when and what your response was it may be a violation.
          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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          • #6
            Originally posted by lprat View Post
            I read somewhere that if you filed a complaint with the labor board, and they weren't able to get a settlement for you, you could then file with State or Federal and try, but if you went to court first and lost - you couldn't come back to the labor board for help - My question is - if you decide to first go to the labor board - will they be able to ask for interest and liquidated damages along with the back overtime pay or do you have to hire an attorney to get everything that you might be entitled to?
            Let's say the DOL gets the call. They investigate and find that the employer owes back taxes. They then tell the employer what they found and how much is owed. If the employer agrees to pay up (and by a certain date), then the DOL does not take the matter to court. The aggrieved employee gets only the back wages calculated by the DOL.

            The employee then gets a paper check along with a form that states

            Your acceptance of back wages due under the Fair Labor Standards Act means that you have given up any right you may have to bring suit for back wages under Section 16(b) of that Act. Section 16(b) provides that an employee may bring suit on his/her own behalf for unpaid minimum wages and/or overtime compensation and an equal amount as liquidated damages, plus attorneys' fees and court costs. The statute of limitations for Fair Labor Standards Act suits requires that a suit for unpaid minimum wages and/or overtime compensation must be filed within 2 years of a violation of the Act, except that a suit for a willful violation must be filed within 3 years of the violation. Do not sign the receipt unless you actually have received payment of all back wages due.

            If the employee cashes the check, but not sign the form, the right to sue for backwages and damages has been given up.
            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.

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            • #7
              Non payment of overtime

              Thank you again for all of your comments.

              In answer to ElleMD - I am just frustrated about all of the grief this one employer has caused to myself and my brother.

              The sexual comment was thrown out there in honest truth, because to be honest it still bothers me. His advances were not encouraged or welcomed. Once my brother receives what he is entitled to - we both will be able to move on and look back one day and remember what a miserable person he really is.

              Again - thanks for your help.

              Comment


              • #8
                Salaried Employees are NOT entitled to Overtime

                Unfortunately MOST salaried employees are NOT entitled to overtime no matter how many hours they work. That's one of the downsides of being paid a SALARY as opposed to being paid HOURLY. What the employer did was within his rights to keep the position at the salaried rate. It stinks but it's the law.

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                • #9
                  sheephoganess, please do not reply to old threads - this thread is from 2008. Thanks.
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