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Employment Law/Changed from exempt to non exempt


I work for a very large company and they recently changed everyone that works in the technical support center to non exempt. The reason they gave us is that we were not being compensated fairly for time worked. The avg work week was 45- 50 hrs. With this change in classification it has affected our benefits. IE: Less vacation time, reimbursement for education, etc. HR is telling us they understand we can't get 45 - 50 hrs of work done in 40 hours and OT should be approved. Our manager is making the approval process for OT very difficult and now most employees in our department are working "under the table" just to get their work done and not reporting the OT. I have 2 questions. 1. If the company knew we were working that many hours and they reclassified us so they would not be in violation of wage and hour laws should they have to pay us back wages. 2. If the manager is turning his head away to the fact that his employees are working more then 40 hours and not reporting this to payroll is that in violation of wage and hour laws?

#1. If the company corrected the error and reclassified so they would not be in violation of wage and hour rules you could possibly go to the Department of Labor and maybe collect some back overtime. It would depend on the Department of Labor they may tell you the problem has been corrected and your amounts will now be calculated as hourly and you will be paid for overtime.

#2. Employee calculated as non exempt should be putting all the time on their timecards and not working under the table to get their work done. If the supervisor knows it and is hiding it he is in violation of the FLSA (Fair Labor Standards Act) and the company could be fined and the overtime will be paid providing the employee has the records of the time they worked as the DOL are not mindreaders. The employees need to be writing down their times on a calender or in a day planner book. They also need to be reporting them on their timesheet. If they are doing this without the supervisor's knowlege or okay than they need to stop doing it.  If the company does not have knowledge of the work being done overtime they do not have to pay overtime for it.

I would contact the Department of Labor and discuss this issue with them.


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Shirley McAllister, CPP, PHR


I can answer questions about payroll laws and payroll tax laws and Human Resource laws and agencies. I can answer federal payroll and human resource law questions and most states; I do not have a knowledge of the local taxes for cities and counties within the state. If and when I can I will try and send you the website where you can reference the answer and where you can obtain more information as well as a contact number if needed for that particular agency. Some agencies I have worked with are IRS, Department of Labor (federal and state), Revenue Canada (and provincial governments), Inland Revenue, OSHA (0ccupational Safety and Health Administration); Social Security Administration and National Child Support as well as other agencies in Payroll and Human Resources. Some Laws I am particularly familiar with are FLSA (Fair Labor Standards Act), ADA (Americans With Disabilities Act), FMLA (Family Medical Leave Act) COBRA (Consolidated Omnibus Reconciliation Act ) , QDRO's, QMCSO's, and other support orders and garnishments, USERRA (Uniformed Services Employment and Remployment Rights Act,PPA Act (Pension Protection Act of 2006, As well as most other employment type acts. I am also well versed in the Title V Civil Rights Act and the HIPAA (Health Insurance Portability and Accountability Act).


30 years in Payroll and Human Resources

SHRM (Society of Human Resources) APA (American Payroll Association) DOLEA (Department of Labor Employers Association) CPA (Canadian Payroll Association) NAPW (National Association of Professional Women) The Mentoring Network

PHR Certification in Human Resources CPP Certification in Payroll in U.S. Payroll Administrator and Payroll Supervisor certification in Canada

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