Exempt classification for a clearly non-exempt position

[Cidarony]

Texas
I work for a very large global company (over 40,000 employees in the Austin area alone). I have been here for 2 years in the same position. When I started I was a contract hourly non-exempt employee. Other people have held the position in the two years that I have been there and now I am back in the same position. I am now a salaried exempt employee in this position. I have checked the FLSA guidelines for exempt vs. non-exempt positions and this one is CLEARLY a non-exempt position (it's essentially a receptionist position). I do NOT exercise independent judgement mor than 5 to 10% of the time in this position. I have mentioned this to my supervisors but nothing has been done. I haven't pushed the issue in the past because I'd rather have an exempt job than no job at all. I found out today that I am being fired on Friday, so job preservation is no longer an issue. What can I do? After I'm fired can I file a complaint and request back pay for the overtime hours I worked? I have logged these hours. Since the other 5 employees who were in this position were non-exempt (and I was non-exempt for 8 months in the position), would that constitute a precident? I'd appreciate any help you could provide me.

 

[pattytx]

Contact the Texas Workforce Commission to file a claim for unpaid overtime. That's your first step. The TWC will investigate and order the company to pay you back overtime wages if they find the company in violation.

 

[Cidarony]

Thanks

Thank you so much! I'll definitely do that, great idea.

 

[obnoxio]

Vaguely exempt from overtime

State: TN

My employer says my position is "salaried" yet I have never been given a clearly defined job title or description.

I am basically a data entry clerk with some customer service functions. Decisions are based on customized computer software and guidelines set up by their customers, so that any independent judgements I do make are essentially "yes or no" responses.

My employer could make the argument that I do make decisions, since I have developed procedures and practices, and suggested modifications to forms and software that were implemented.

My position is that this is rote activity that could have been done by anyone with knowledge of computers beyond a novice level, but requires no "advance knowledge" as defined by the FSLA for exempting professionals.

I have occasionally been the recipient of approved "overtime" pay, which was at a rate lower than my hourly compensation and certainly not time-and- a-half by any means. Other equally vaguely defined employees are doing 60-70 hour weeks on "salary" and so I have an interest in it -not- happening to me! How would I go about getting a clear definition of whether I'm officially salaried or not?

BTW, as a condition of my employment I signed an agreement which included wording saying I could be sued for divulging information that could hurt the company financially in any way, either while employed or during a long grace period after leaving. How legal is this agreement, in light of the information above, and has it been set up to discourage whistleblowers?

 

[pattytx]

Just because you make some "decisions" does not automatically make you exempt. The decisions have to be critical to the running of the business. As a data entry operator with some customer service work, I can nearly guarantee that you are not an exempt employee.

"Salaried" is just a pay method. Nonexempt employees can be paid on a salary basis, but still must receive overtime pay and cannot be docked for missing time, for example for a doctor's appointment. There is a specific method whereby only the overtime premium (.5 your regular hourly rate as defined by the Fair Labor Standards Act), but that can be used only if your work weeks are not scheduled for 40 hours per week. For example, one week is 30 hours, the next week is 50, the following week is 43, etc.; plus you must agree to be paid under this method. Very few employers use this method because it is extremely difficult to administer.

And Tennessee does have Whistle Blower's protection. See this page:
http://www.state.tn.us/labor-wfd/lsques.html

The employer may have meant that your could not divulge proprietary information, but if so, they worded it poorly. If they were trying to get you to agree that you would not report a violation of law, that agreement would be worthless.

Tennessee does not have its own laws regarding classification of employees, minimum wage, or overtime. You should contact the federal Dept. of Labor to file a complaint as, in my opinion, they are either incorrectly classifying you as "exempt", or you are probably not being paid the correct overtime rate when you work this overtime.

Good Luck.

Oh, and one more thing. I only responded to your post because employers that do this make me angry. In the future, when you have your own question, don't piggyback it onto another thread, even if the subject is related. Start your own thread.