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Non-exempt vs exempt
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Non-exempt vs exempt
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
I have a few questions on the fair labor law as it pertains to overtime.
I work for a rent-to-own store as an assistant manager. My main responsibility is sales. I was hired on for an annual salary
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Forums » Topic Forums » Legal Forum » Non-exempt vs exempt
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Non-exempt vs exempt
posted at 8/31/2009 5:53 AM EDT
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Posts: 1
First: 8/31/2009 Last: 8/31/2009 |
This is a late post to this thread, but necessary to correct some misinformation.
Jacer83 is incorrect that he his employer is classifying him as EXEMPT. 29 CFR 778.114 (fluctuating workweek method, sometimes known as "chinese overtime") applies only to non-exempt employees. These are, however, SALARIED non-exempt employees (some people incorrectly assume that compensation by salary automatically makes the employee exempt, however this is not the case). HRpro is dead wrong about paying less than the full week's salary under the fluctuating workweek method (778.114). See DOL Opinion Letter 2006-15 at http://www.dol.gov/PrinterFriendly/PrinterVersion.aspx?url=http://www.dol.gov/esa/whd/opinion/FLSA/2006/2006_05_12_15_FLSA.htm which *clearly* states the Department of Labor's view. Under the fluctuating workweek method almost no cause for making a deduction from an employee's weekly salary is allowed, and this specifically includes voluntary employee absence from work. The employer can choose to deduct accrued vacation time to cover the absence or, of course, always choose to terminate the employee. But absent actual termination, the employee MUST be paid his full salary for the week or the fluctuating workweek method (aka "chinese overtime") is disallowed and the employee then becomes entitled to back overtime reaching back years. While impermissible deductions from the salary of EXEMPT employees only disallows their exempt status for those work periods during which the impermissible deduction was taken (and can subsequently be "cured" at any future time through application of the so-called "Window of Correction" [29 CFR 541.118(6)]) it should be noted that there is no "Window of Correction" for employer violations of the fluctuating workweek rules, nor is there any indication in the regulations that once fluctuating workweek status has been lost--through impermissible docking--it can ever be restored. Failure to follow EXACTLY the letter of the 778.114 regulations will result in considerable legal liability to the employer, including actual damages up to three years of past overtime liability, an equal amount again to be paid as liquidated damages, and both the employer's own legal costs and also responsibility for the employee's legal costs suing the employer as well. In other words, big bucks. |
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Non-exempt vs exempt
posted at 9/3/2009 5:17 AM EDT
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Posts: 155
First: 8/24/2009 Last: 2/9/2010 |
RutherfordB
I would encourage you to be fully aware of statute before making a comment that someone is dead wrong. Full day voluntary absences, of which I was discussing, need not be paid under either a fluctuating work work method or a salary basis. Consequently the full week salary need not be paid in those weeks where a full day deduction is made based upon a full day of voluntary absence. |
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