Overtime when salaried?

[jm_spm]

What is the name of your state?What is the name of your state? ILLINOIS

Hi,
I need your advice.

My wife started her job recently - I think the way she is treated by her employer is not fair.

- She got a piece of paper saying that for 5-day work week she would get $500, for 6 days $600 and for 7 days $700. (looks like salary to me)
What about overtime? Is there no overtime for salaried employees? For 6 and 7 day work week she should get 40hrs + overtime?

- They told her that there is work to be done, and that she has to stay at work as long as it is required to do the job. (is it still a salaried job? shouldn't it be paid by hour if they require to stay longer?)

- I was not said or written anywhere, so I think that she is supposed to work 40 hrs a week. Is this correct?

- So far, every day she stays at work at least for one or two hours longer, because the amount of work they want to be done is just too much. She is not paid for the extra time.
At the beginning my wife thought that by staying longer and doing "voluntary" work she will earn respect and appreciation from her boss. She never heard a thank you and her boss is always disappointed and implies that not enough has been done.

- Once she asked the boss why they didn't use time cards - she replied that salary system works better - i think I know why - she always squeeze a couple of free hours from her employees. The system works like that: boss is angry -> employees are afraid of "consequences" (it is a small company, so the boss can do nearly everything she wants to) -> employees try to make boss happy - they "voluntarily" stay overtime and do excess of work -> boss is still angry because it is better not to show any satisfaction and it is good to pressure employees.
Does it look like some kind of harrasment or mobbing at work?

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What should we do? How should my wife approach the boss and what arguments should she use.

I will really appreciate your friendly advice.
Thanks,
JM

 

[cbg]

What you describe is not salary. A salary means that you get exactly the same amount every week no matter how many hours you work.

Salaried is a pay method only. What matters is whether an employee is exempt or non-exempt. An employee who is exempt has no legal expectation of overtime, ever. A non-exempt employee must be paid at the rate of time and a half their regular hourly wage for any hours over 40 that they work in a single week. It is the employee's job duties, not her job title and not how she is paid, that determines whether she is exempt or non-exempt. No Federal law and no law in Illinois says an employee has to be paid overtime for the 6th of 7th day of work in a workweek - it is based ENTIRELY on how many hours she works. If she works 4 hours a day she is not going to be due any overtime even if she works seven days a week; if she works 8 hours a day for seven days then she would be due OT for days six and seven but NOT because she worked 7 days; because she worked over 40 hours.

The law does not dictate a 40 hour week. The fact that nothing regarding the number of hours is in writing does NOT mean that a 40 hour week is mandated. They can require her to work as many or as few hours as they wish; the ONLY requirement is that IF she works more than 40 hours she gets time and a half (IF her job duties determine that she is non-exempt).

Time cards are not required by law. If the employer chooses to use another method to keep track of the hours worked by non-exempt employees, they are free to do so. They have no obligation to keep track of the hours worked by exempt employees, although they may do so if they wish.

What you describe does not consititute any form of illegal harassment.

Without knowing whether your wife should be classified as exempt or non-exempt, there is no way to tell if the employer is acting legally or not.

 

[jm_spm]

Thanks it seems more complicated than I thought -I just had a quick review of labor laws.

Ok, so the most important thing to do now is to find out if she is "exempt" or "non-exempt".

I did a little research, I would appreciate if you could say if I am correct, or to point out where I am wrong. I'll try to do the homework myself - of course I don't mind if you want to elaborate a little bit .

Here we go..

My wife is a dental lab technician.

I am sure that her boss would like her to be salaried and exempt. Than, I think, it would match my previous description. (Work as long as needed, no overtime)

I went through US DOL / ESA web page fact sheets and the classification I found really a good match is a blue-collar worker, her work is mainly manual and repetitive.
On the other side I found that Learned Professional Exemption a slight match, but they require that "employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment", which disqualifies that as a basis for exemption.
US DOL / ESA / FairPlay Fact Sheet

Therefore, I think that she is salaried, non-exempt, so she should be paid overtime accoriding to FLSA.
Handy Reference Guide to the Fair Labor Standards Act

Thanks,
JM

 

[cbg]

I would agree that her job qualifies as non-exempt.

I still am not fully of the opinion that what you describe technically qualifies as salary. As I said before, an employee who is paid on a salaried basis receives the same amount every week no matter how many hours they work.

In any case, "salaried non-exempt" is not a classification recognized by the DOL.

A non-exempt employee may be paid on a salaried basis as long as they also are paid overtime when it is worked.

Although you didn't ask this, I'm going to include it just because so many people misunderstand this. Overtime is due when the employee WORKS more than 40 hours per week. Vacation time, sick time, paid holidays, personal leave, or any other paid leave time does NOT get included in overtime calculations.

 

[jm_spm]

I would agree that her job qualifies as non-exempt.

Thanks.

I still am not fully of the opinion that what you describe technically qualifies as salary. As I said before, an employee who is paid on a salaried basis receives the same amount every week no matter how many hours they work.

Initially I thought that salaried job means 40 hrs a week - but after your first reply I learned it is not that way. (Thanks)
It is more or less this situation. She was told that she has to stay at work as long as there is work to be done. She is not paid by the hours. Looks like salary. She also got a piece of paper stating that for 5 day week she gets $500, for 6 days - $600 and 7 days - $700. Few times she was asked her to work on saturday, and then she was paid $600. It can't be overtime, so I think it is some kind of voluntary compensation.

In any case, "salaried non-exempt" is not a classification recognized by the DOL.

I got this impression from the DOL documents - links are posted on my previous post.
In the document regarding exempt status DOL requires employee to be salaried to be exempted, so I guess there must be "salaried exempt" or something similar.
In the other sheet regarding overtime pay for salaried employees they say that if salaried employee works more than 40 hrs/week they have to be paid OT, so there must be something like "salaried non-exempt".
I don't mean to argue, especially that I have no idea about legal nomenclature, that just my simple description of what I understood.

A non-exempt employee may be paid on a salaried basis as long as they also are paid overtime when it is worked.

Yes. For me in simple words it is "salaried non-exempt" - you can slap me .

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To summarize - we got two cases here:
1) My wife cannot be classified as exempt because a dental lab technician position is mainly manual (etc.).
2) As a non-exempt employee paid on salaried basis she should be paid OT when working more than 40 hrs a week.

Please correct me if needed.
BIG Thanks for your time,
I really appreciate the discussion.
JM