OT Pay Situation in Oregon

[jleeth]

What is the name of your state? Oregon

My wife works for a company that will not pay her overtime if she is over her 40 per week but WILL doc her pay if she is under her 40 hours. Is this legal? Is there any exceptions?

Thanks.

Jimmy

P.S. She has recently been changed to Exempt status but under the same situation above was "supposedly" in an non-exempt status. Does anyone think we have a case? It has been like this for 12 years and we have been together 9 of them...this is the first time she mentioned to me about this situation and I was floored.

 

[cbg]

One way or the other, something is wrong.

If she is exempt, then she is not entitled to overtime under ANY circumstances. However, she can only have her PAY docked (she can have her vacation, sick or personal time banks docked to make up the difference) under the following circumstances:

1.) In the first or last week of employment, if she does not work the entire week
2.) If she is on FMLA
3.) If she takes a full day off for strictly personal reasons
4.) In a company where there is a bona fide sick time policy with a reasonable number of days, if she calls in sick when she either is not yet eligible for sick time, or has used all the time available to her
5.) If she has been suspended for a violation of workplace conduct rules, which apply to all employees, and which are part of a written policy.

ONLY in the case of #2 can her PAY be docked in partial day increments. With that single exception, if she works any part of the day she MUST be paid for the whole day. However, she can have her time banks docked to make up the difference. For example, if she comes in two hours late, they have to pay her for the whole day, but she can lose two hours of vacation time.

If she is non-exempt, then she doesn't have to be paid for any time she does not work. They can legally dock her for any time she does not work, including tardiness, absences, or times the company is closed. However, in this case she MUST be paid overtime at the rate of time and a half her hourly rate, for any hours over 40 in a week.

It IS legal to pay a non-exempt employee on a salaried basis, AS LONG AS they also receive OT for any hours over 40 in a week.

By all means, she should report this to the State Department of Labor. Regardless of whether or not she is correctly classified as exempt, or not, some part of the law is being violated. The employer does not get to have it both ways. There are NO circumstances when it is legal to dock pay but not pay overtime. Either she's exempt and gets her full salary every week (with the above exceptions) or she's non-exempt and she gets overtime. There's nothing in between.

 

[jleeth]

THANK YOU!!! I thought I was going crazy that a company would willingly violate the law like this....I thought I was missing something. We will report it immediately.

Another ? to this is: Will she be reimbursed for all those hours she has worked over time or lost hours? Or is that something the state would not help with and we would have to sue the company individually??

Thanks again!!!

 

[cbg]

The state will do an investigation, and determine whether or not the company is in violation of the law, and if so, whether or not the violation is willful. If the company is found to be in violation (from what you've said I don't see how the finding can be otherwise, but it's always possible there is some factor you are not aware of that might change things) the company will be required to repay her lost back wages for the last two years, three years if it is determined to be a willful violation. (It's possible, and not even all that unlikely, that the company may have honestly misunderstood how the law works and not realized that they were in violation. This will not prevent the state from ordering repayment, but it may mean that the violation is considered not to be a willful violation.)

Unless Oregon law specifically says otherwise (the DOL can tell you this) her damages will be limited to either the two or three years.

 

[jleeth]

First of all I really appreciate your help on this.

I just spoke to my wife and she is going to bring home her policy book from work. She is a manager in a hair salon. She just told me that she is NOT an hourly employee nor has she been for the last 7 years since becoming manager (which I knew but forgot to mention). So if I am understanding this correctly this means that she is NOT entitled to OT but she should also NOT be getting time deducted from her pay if she works at least a couple of hours a day?! Just making sure I am right on this. We don't want to raise an alarm if we are wrong here (could be bad in an at will state of employement) .

Jimmy

 

[cbg]

You are correct. If she is correctly classified as exempt (and if she is a manager she most likely is), then there are no circumstances whatsoever in which she is entitled to overtime, or any other compensation over and above her weekly salary. However, other than the exceptions I listed in my first post, there are also no circumstances whatsoever in which she can have her salary docked. They CAN, in your state*, dock her vacation, sick or personal time to make up the difference, as I explained in my second post.


* This is legal in all states except two. However, since the two in which partial day deductions from time banks happen to be the states immediately north and south of you, I wanted to emphasize it. If she receives her full salary, it IS legal for them to dock vacation, sick and personal time.

 

[jleeth]

CBG - I am going to investigate further as my wife told me that she just signed something recentlyt that stated she is salary but non-exempt as an employee. I will let you know what we find out tonight. Thanks for all your advice again!!!

 

[cbg]

If they are considering her salaried but non-exempt, they should not be docking her pay (although legally they can, there's no point to calling her salaried if they're going to do that) and they MUST be paying OT.

Even if she qualifies for exempt, it is legal for them to pay her as non-exempt (although the reverse is not true). However, they don't get to pick and choose what parts of the law they follow. If they are going to consider her non-exempt, they have to pay her as non-exempt. If they are going to consider her as exempt, they have to pay her as exempt. They can't use only the parts of the law that are convenient for them.

Good luck and keep me posted.