Expert: Timmy Chou - 11/21/2009

Question
I was originally a salaried physical therapist for a physician owned practice.  They then switched to me to hourly and scheduled for 40 hours a week.  They are now (due to higher patient volume) moving me back to salary and increasing my hours per week.  Am I exempt from collecting any overtime?  

Answer
Thank you for your question!

As you may see if you have looked at answers I have provided before to questioners, I always note that mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.

The case you describe here is very typical and can be considered a "classic" HR dispute presentation.  I cannot mediate this with you alone but I can respond to your question from my business consulting experience.

Note that this may have legal factors and you may wish to consult a labor attorney or your State Labor Board/Commission.

I often tell people that it may be useful to consider that right and wrong are not always the most useful places to begin in dealing with these sorts of problems.  For most large organizations there is only expedient and inexpedient.  Also, there is a cost to exacting justice and the costs can be quite high.  Remember that your person-hood and your work are not even remotely related and that the most successful people at work are often the least successful with others since they have often become successful on the bodies of those they have slain.

You are dealing with authority figures who are only interested in their own success or the path of least resistance in terms of how they manage the business.  I'm guessing they could care less about you so don't put too much investment in their position.  Your status changes are being changed for business reasons and now you must create a business reason to deal fairly with you.

Please begin by documenting a very careful chronology of events as they have occurred.  Names, dates and locations.  Put things in writing at this point paying careful attention to any evidences of good work or recognition.  What will be important to note is the treatment of categories of workers (all PTs, all salaried people, etc.)  In many states you can be fired for just about any reason without a problem.  These are known as "right to work" states.  However, you cannot be treated differently than other workers nor can established HR policies or procedures be violated without consequence.

Please request a written copy of the HR policies and procedures.  Make sure you get a specific copy of the disciplinary procedures and the grievance procedures.  Also ask for a written explanation of the detailed reasons for the status change. Place your requests in writing and send them certified.  

In many states you may be switched in and out of various statuses at will as long as the switch does not violate any collective bargaining agreement or employment contract.  However, as mentioned above, you cannot be singled out and treated differently than others.  Nor can the company have it both ways -- in other words they cannot change your status ONLY BECAUSE they want to not pay you overtime, they must have another reason.     

Many states have Employment Commissions or other employment offices where you can file a complaint for free.  You should contact them right away and understand your options in your state.  You may also be able to get information from the US Dept of Labor.  Find their offices.  

These are some ideas.  Feel free to follow up with additional questions.

For your information, the pros and cons of the types of dispute resolution methods follows.

GOOD LUCK!

Arbitration, Mediation, and Litigation

Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system

Benefits of Arbitration:
  Confidential, no public record
  Limited exchange of documentation, information
  Quick, don't have to wait for a court date
  Arbitrators have expertise in the subject matter and are trained in conflict resolution
  Cheaper than litigation
  Preserves business relationships

Negatives of Arbitration

  It's a compromise, no 100% winner
  Complex arbitration can be costly
  If not satisfied, may litigate the arbitration procedure
  Poor results with an unskilled arbitrator
  Both parties must agree to cooperate in the process

Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.

Benefits of Mediation:

  Neutral mediator can objectively suggest alternatives not considered before
  Parties are directly engaged in negotiating the settlement
  Can be quicker than litigation
  Less costly than litigation
  Preserves business relationships
  85% of American Arbitration Association cases mediated find successful solutions

Negatives of Mediation

  may not reach a binding decision
  unskilled mediator

Litigation: using the judicial system to resolve disputes

Benefits of litigation:

  a clear winner and loser
  uses a prescribed set of procedures
  more predictable outcomes
  is final

Negatives of Litigation:

  waiting for court dates can do more harm
  usually more expensive than mediation and arbitration
  part of the public record