Tuesday, July 7, 2009

"Fair Labor Standards? HA HA!" Laughs My Boss

Here's a quick thought.

I've been working a lot of overtime lately. It's not by choice, and it's not much fun. But during the evenings I spent in my cubicle, I took some comfort in knowing that my paycheck would be significantly bigger, with time-and-a-half pay for every hour worked over the normal 40-hour week.

Well, after three or four weeks of this, I actually took a look at my pay stub (something I ought to do more often) and noticed that, in fact, I was not getting time-and-a-half--actually not even close. So, the next day I waltzed into my boss' office to correct the simple mistake. Everybody knows that time-and-a-half for overtime hours is law, just like the minimum wage.

I showed her the numbers. "See, that's not even close to time-and-a-half," I said. "Who do we need to talk to to get this fixed?"

"Actually, we don't do time-and-a-half," she answered.

"We 'don't do' it?" I pondered.

But my boss confidently cited the specific office policy on the matter. So I went back to my desk to look it up.

She was right, at least according to office policy. Time-and-a-half for overtime and the minimum wage (and other good things) are guaranteed under the Fair Labor Standards Act of 1938. The catch is that every single employee in my office is "exempt" from the Fair Labor Standards Act. How convenient!

My coworkers and I supposedly fall into one of the categories set up to exempt most white collar employees from the law. I guess my employer thinks we fall under the "administrative employee exemption" or the "learned professional employee exemption." But according to the explanation of the exemption categories on this site, I think my employer is wrong.

And this is where a union would help. I'm just one guy, sitting at my desk, Googling about my rights, and telling my boss I think she is mistaken about the law. Even if every other worker in the office is doing the same thing, it's not going to add up to anything. The response from the boss is always going to be some variation on, "Nope, you're wrong. Here's our policy statement. Go sit down."

But if the workers were organized, we would at least be heard. A union would have the capacity to take questions like this to court if necessary, where win or lose, at least there would be due process. A union would have some actual power to maintain our rights against the sometimes arbitrary fiats of the bosses. The next time management declares that we are "exempt" from labor law, a union could say, "We think not." And someone would listen.


Elizabeth said...

As a fellow "exempt" employee, I can say with certainty (because I fought this fight) that at my place of employment, "exempt" employees are supposed to receive "credit hours" (ie, earned, paid vacation hours) for every hour they work overtime (check out the OPM website on this). Agencies are NOT REQUIRED to do this, but many do (you should check with yours). And don't talk to your boss, talk to your HR people.

The problem is that you can only accrue up to 24 hours of this before you HAVE to use it. If you've "clocked" 24 but haven't used any and then work 10 more, those ten don't count. You first have to use ten, to then count that extra ten.

And that, my friends, is how 24 + 10 equals 24. It's funny math, government style.

Get Off My Back said...

I'm not a lawyer, but you can fight these "wage theft" issues by filing a complaint with the Department of Labor's Wage and Hour Division. Of course, your boss might (illegally) fire you for filing the complaint, but if you're truly not exempt, you'd win back wages in the long run. Plus, you could also file a complaint and lawsuit for a "retaliatory" firing. You can check into the issue at the DOL.gov site, or check with your state labor board.

Dave said...

Elizabeth, that 24/10 rule sounds pretty strange and like it could be abused by your boss pretty easily.

That's a good point about filing complaints with the DOL and something to keep in mind. Even if my workplace is not organized, we can each take individual action and use the government protections that were mostly won by organized workers.