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Wage vs Salary
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Wage vs Salary
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
How do you determine if you are truly complying with exempt salary standard? employees get paid for 40hr week and have an accrual of vacation time and sick time according to hours worked (seniority ho
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Forums » Topic Forums » Legal Forum » Wage vs Salary
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Wage vs Salary
posted at 6/26/1999 3:59 AM EDT
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Posts: 7
First: 6/26/1999 Last: 7/23/1999 |
How do you determine if you are truly complying with exempt salary standard? employees get paid for 40hr week and have an accrual of vacation time and sick time according to hours worked (seniority hours). However salary for same position varies drasticly due to different seniority of employees does this comply? ie $15.00-25.00 hr. Should this be changed or are we completly missing the mark on complience w FLSA. |
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Wage vs Salary
posted at 6/26/1999 8:58 PM EDT
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Posts: 1
First: 6/26/1999 Last: 6/26/1999 |
90% of our employees are outsourced to clients to augment the clients peak work load demands. The premise they are paid under is simple... if they work they get paid, when they are not working (billabe to a client) they don't get paid. These people meet the FLSA requirements to be able to pay them straight time for overtime instead of time and a half, however FLSA says if the employee works less than the prescribed hours in a work week (40) and I, the employer, dock them (do not pay them for hours not worked... billable to the client) I have treated them like hourly and therefore must pay them time and a half for overtime. What we have done to comply is create positions that are salaried weekly vs salaried annual or hourly. In this case when the employee hires on and we send him to a client to work for a 3 month assignment, and during that assignment if for any reason the employee works any part of the work week but less than the designed 40 hours the employee will get paid a minimum of 40 hours per his weekly salary established when hired for the assignment. However if he is in between assignments or chooses to take a week or more off during an asignment, he/she does not get paid during that period that complete week/s were not worked. My sources tell me this is a legal alternative to having annual salaried positions where I would have to pay an annual salary for people who are only billable 8 or 9 months out of the year or treating the people like hourly positions, and having to pay time and a half for hours worked in excess of 40 in a week.
My question is my "weekly salaried" approah legal as per the FLSA and what are the traps? |
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Wage vs Salary
posted at 6/28/1999 6:48 PM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
Wow, that last one was a hard one to follow. Let's deal with the two queries here separately.
(1) With respect to salary, the "short form" salary basis test is still pretty low. As long as the employee is otherwise exempt (the duties test) and makes more than $250 per week, and otherwise complies, the employee will be considered to be exempt. There is no problem tracking the leave entitlements for sick time and vacation time (subject to my grey area comments, which have been repeated so often I feel no need to post them one more time here, unless you really want them), the key is what happens when the employee exhausts the leave. As long as no salary docking takes place (use other discipline instead), then there is no threat to the exempt status of the employee. (2) The second query is much more of a problem. I cannot say whether the practice is "legal or not." To be sure, an employer can create a non-exempt salary position and there are circumstances under which the employer can pay such persons overtime at the straight time rate. Where I have concerns, however, is the switching of people back and forth depending on the assignment (rather than the duties of the employee). I would consult with a labor and employment relations attorney who can give you guidance. Do yourself a favor and get a pro on board with you. If you need a referral, just drop me a note: Matthew T. Miklave Epstein Becker & Green, P.C. 250 Park Avenue New York, New York 10177 (212) 351-4663 (212) 661-0989 (fax) MMiklave@ebglaw.com |
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Wage vs Salary
posted at 7/3/1999 5:13 AM EDT
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Posts: 7
First: 6/26/1999 Last: 7/23/1999 |
Sorry I'm new to this position and seem to have inherited alot of problems.When the employees leave is exhausted, they have no salary. What other disipline are you suggesting? These employees are professionally exempt. so the salary basis is pretty important. They are also our "Cash Cow", we sell thier services to the public and that is our sol source of revinue. Please go over the grey areas you speak of, greatly appreciated. |
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