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Question
I was recently given a promotion to an "assistant manager" position in the state of Florida. I work for a franchisee of one of the popular Yum! Brands. As part of this "promotion" I've been giving no raise, but more hours. I am now working about 55 hours a week, but have been told to clock out after five hours.

I am an hourly employee, and when I asked if I was "exempt" or "non-exempt" my Area Coach informed me that "she didn't know" she was "still new to this".

I make, with ten hours of overtime 28,600 a year, thus putting me over the 455 a week threshold...but doesn't the very fact that I make overtime mean I'm not exempt?

And if that's the case, then can I receive pay for the additional hours I work past this fifty hour limit they've placed on me?

Answer
Francis,

Congrats on your promotion....     Unfortunately, not every promotion comes with a bump in pay.  It makes no sense,  but I admit having a few of these promotions myself.  The truth is, you do get a raise.... the new skills and responsibility that you earn doing the new job for "nothing extra"  is something you can take with you when looking for other better paying positions..  So, the fact you got the promotion-- good job.   Do well.

The overtime is a different story...... that is a doozy.

Florida follows the Federal regulations on overtime.  this means that in any 7 day consecutive workweek-  Like Monday to Sunday, any worked hours over 40 require the hourly #non-exempt# employee to be paid overtime that is time and 1/2 the regular rate of pay.     You are right-- if you were getting paid overtime, then you are NOT salaried exempt and ARE REQUIRED to be paid overtime.

When your manager unwittingly asks you to lock step into clocking out 5 hours early, they are violating the overtime laws and causing you and them risk.    It is so easy to just comply by paying overtime or by having retailers and employers get a better handle on scheduling to control excessive worked hours that this always drives me batty.

Why would any hourly employee ever work off the clock?   Isn't this discouraged everywhere these days ?    Your area coach is ignorant to Federal and state wage & hour and overtime laws and that's no excuse for violating these laws.   Ignorance is no excuse.   So, YES, you should be "punched in"  for all your worked hours.   Yes, you would be paid overtime and the overtime would begin at 40 hours;  not  your "agreed upon"  50 per week.

So, the fact is you are likely going to come into resistance when you do something about this and the issue surfaces when you report what you have just found out-- you are due back pay and overtime pay.   If the company is "dumb" enough to fire you over reporting this and for demanding you get paid the overtime you are due, then you should get an attorney who specializes in employment cases to work for you on this.  In my opinion based on your info, you have a solid case if it goes that route.  Furthermore,  you would be  "owed"  overtime for the last two years for any other unpaid and forfeited hours you worked and did not report....  and finally,  not only you;  but other employees who are also asked to do the same will ALSO get the same back pay for overtime.    This could be thousands or hundreds of thousands of dollars.

Often, some bosses get the idea they are helping the company to control costs.  They implement these "helpful" rules on their own without any management being aware and then they look like they are keeping things under control--- all the while they're ignorant to the fact they are breaking the law and having someone like me open their eyes.   The company is at risk too on so many levels.

I do not suggest you run to the attorney tomorrow on this,  but first give the employer the chance to make things right for you and the others who were clearly shorted pay.   If you work overtime, the least they can do is pay you for it-- literally.    If they try to discourage you and tell you  you're causing problems,  or fire/  or even lay you off, then see the attorney ASAP.   You should also contact the "corporate"  and let them know about this if your area manager gets no traction in fixing it.   Do not give up on this

LAst- another explanation for you..  an employer may not impose a work limit on worked hours in the way you are explaining it.  For example, the company may say no employee is allowed to work more than 50 hours a week,  but if you do work a busy week and need to put in 65 hours, they MUST MUST MUST   pay you for the 65 hours  # 40 regular and 25 overtime#  but they could write you up for discipline for working over the allowed hours.  Bottom line is if you are permitted to work hours, you must be paid for it.

If needed,  call me to discuss-- no strings attached.   I'd be interested to hear how this all works out in 4-6 weeks....     and remeber,  if you find yourself laid off or fired within the next 6 months to year, get an attorney.

My office # can be found at my company website.

I hope this helps.

Please comment and remember to score the response.


Brian Phillips  

Human Resources

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Brian Phillips

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Foreign and US university students -*PLEASE*- DO NOT waste your time asking for my opinions, comments or analysis of your homework questions. Homework questions are not answered and are rejected. I am happy to help answer questions asked by employees and employers regarding United States based state and Federal wage and hour, OT, Fair labor standards, FMLA, COBRA, Recruiting, Interviewing techniques, employee manuals, discipline, terminations/quits, unemployment, HRIS rollout, Employee Leasing or Staffing company cost analysis, day to day scenarios, work situations and more. Essentially a well rounded HR generalist who operates Harvis, Inc., a human resource consulting and service business based in Northeastern Pennsylvania "NEPA". http://www.harvis.org

Experience

At Harvis, Inc., we provide Human Resource products, services and advice to small businesses that may not have the time or resources to hire a full time HR department. For larger companies with HR managers in place, we compliment their expertise to help with time consuming or time sensitive projects like updating policy manuals, screening and interviewing and more. We make workplaces better by becoming that 1/2 person they need to help handle HR responsibilities on a daily, weekly or monthly basis. Formerly responsible for all Human Resource activity for a staffing agency with 2,500 annual employees as well as an employee leasing / PEO business with 1,500 annual employees. Designed and implemented the HR structure to support hundreds of clients in excess of $ 500 million in payroll volume over career in Human Resources.

Organizations
* President 2006- Harvis Inc. HR Services * President 2010-13 Business Association of the Greater Shickshinny Area - Shickshinny PA * President 2013- ShickshinnyForward Not for Profit Community Long Term Revitalization Organization and former member of varios Chambers of Commerce and HR Taskforce, former President of NBC Business Club 2 years

Education/Credentials
Bloomsburg University - 1993 BS Marketing, Bloomsburg Pennsylvania and Luzerne County Community College - 1991 Business Administration, Nanticoke Pennsylvania

Awards and Honors
* Better than average - 20/10 vision * Bestowed with an occasional "Thank You" from clients and their employees.

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