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  1. #1
    Join Date
    Jun 2011
    Posts
    15

    Default When Can an Employee Be Switched from Hourly to Salaried

    My question involves employment and labor law for the state of: TEXAS

    Hello,
    Can I file a claim against a previous employer over compensation?
    How long do I have to file a claim against a previous employer over wages?

    Some details.
    Hired to work in a bakery as a cake decorator for "x" $/hour. After I had worked over 40 hours, I was told I was on "salary". I needed the job, stayed but kept an eye open for something else. The owner said the decorator/bakers and manager are salary because they are full time. That was 4 employees, and there were 2-5 part time employees depending on the season.

    I enjoyed the custom work I was able to do, but the hours were getting to me - especially with no raise. I am no longer there, and now everyone is on hourly and get paid time and a half overtime - even the decorators/bakers.

    Yes, I am bitter about the whole situation. I worked very hard and helped build this business with my sweat and helped the owner with systems and standards with the "promise" of being rewarded and compensated fairly.

    Just for the record, it's not about 2-5 hours a month, more like 5-20 per week.

    Thank you

  2. #2
    Join Date
    Jan 2006
    Posts
    28,093

    Default Re: Is Salaried Employee Legal

    Salary, in itself, is legal for any occupation or position. Your question isn't about salary but overtime. Depending on the classification, overtime, when being paid salary, may or may not be required to be paid at all.

    Exempt and non-exempt are the classifications that are important. I suspect you would be classified as non-exempt which means you would be required to be paid overtime (although it isn't as simply as time and a half over 40 for calculations).

    Here is an explanation of determine your earnings when being paid salary, non-exempt:

    http://www.twc.state.tx.us/news/efte...laried_nx.html

    Under 29 C.F.R. 778.113(a), to arrive at the regular rate for a non-exempt salaried employee, take the salary and divide it by the number of hours the salary is intended to compensate. If the salary is for a 40-hour workweek, overtime is simple: divide the salary by 40 to get the regular rate, and then pay any overtime hours by multiplying 1.5 times the regular rate. However, if the salary is for a lesser workweek, such as 36 hours, divide the salary by 36 to get the regular rate. If the employee works 40 hours on such a basis, the total pay would be the salary for the 36 hours plus 4 hours times the regular rate. If the employee works 42 hours, the total pay would be the salary for the first 36 hours, plus 4 hours times the regular rate, plus two hours times 1.5 times the regular rate. Finally, if the salary is intended to compensate for 45 hours per week, the regular rate would be the salary divided by 45. The hours past 40 would be compensated at one-half of the regular rate up to 45, and hours past 45 would be paid at time and a half.
    to calculate the proper pay, one first must determine what your standard salary was and what a standard workweek was. That is not determined by simply looking at your pay and hours. It is determined by the employer. The problem is, in your situation, is that it appears there was no predetermined standard workweek but in case there was and it just didn't come through in your explanation; did you have a "standard workweek" that you were expected to work each week?

  3. #3
    Join Date
    Jun 2011
    Posts
    15

    Default Re: Is Salaried Employee Legal

    Thank you for responding.

    I was expected to work a 40 hour week - 5 days, 8 hours. or until the job is done. My pay stubs indicate 40 hours, with the hourly rate of pay - every check is the same. We did clock in and out, sometimes with a time clock, or written on a time card when the clock broke and back to the clock when a new time clock was purchased.

    How and who classifies exempt or non-exempt? Is it the employer? I have done some reading on the subject and I understand that a salaried employee doesn't receive overtime pay when that employee is in an administrative position with authority to hire and fire employees or commission sales reps.

    So, Can I file a claim against a previous employer over compensation?
    How long do I have to file a claim against a previous employer over wages?

    Thank yo for your time.

  4. #4
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,276

    Default Re: Is Salaried Employee Legal

    Quote Quoting Jo-Ann749
    View Post
    Thank you for responding.

    I was expected to work a 40 hour week - 5 days, 8 hours. or until the job is done. My pay stubs indicate 40 hours, with the hourly rate of pay - every check is the same. We did clock in and out, sometimes with a time clock, or written on a time card when the clock broke and back to the clock when a new time clock was purchased.

    How and who classifies exempt or non-exempt? Is it the employer? I have done some reading on the subject and I understand that a salaried employee doesn't receive overtime pay when that employee is in an administrative position with authority to hire and fire employees or commission sales reps.

    So, Can I file a claim against a previous employer over compensation?
    How long do I have to file a claim against a previous employer over wages?

    Thank yo for your time.
    Suggest you go read the fiar labor standards act for answers .... its good information to know anyways

  5. #5
    Join Date
    Jan 2006
    Posts
    28,093

    Default Re: Is Salaried Employee Legal

    even some salary exempt people are required to clock in and out. It is often used just as a means of determining when a person is showing up to work.

    How and who classifies exempt or non-exempt?
    the federal laws.

    I was expected to work a 40 hour week - 5 days, 8 hours. or until the job is done. My pay stubs indicate 40 hours, with the hourly rate of pay - every check is the same.
    then one of two things: either that was considered to be your standard or base work week or they considered you exempt and it doesn't make any real difference what the put down.

    I have done some reading on the subject and I understand that a salaried employee doesn't receive overtime pay when that employee is in an administrative position with authority to hire and fire employees or commission sales rep
    s.there are actually quite a few exemptions but I don't think a cake decorator falls under any of them.

    here is a primer on exempt status:

    http://www.flsa.com/coverage.html

    so, since you were classified as salary but most likely non-exempt, you should have been paid overtime for time over 40 hours. An explanation of calculating overtime pay is also on that link I provided.

    to file a federal claim, you have 2 or 3 years from the date the wages were due. The three year is if the action was willful on the part of the employer.

    I cannot seem to find the time limit for filing a claim through the Texas dol though. I thought I read 6 months but am not sure of that at all. Here is some info concerning the filing through Texas.

    http://www.texasworkforce.org/ui/lablaw/wageclaim.pdf

  6. #6
    Join Date
    Jun 2011
    Posts
    15

    Default Re: Is Salaried Employee Legal

    Thank you for the links, I saw 180 days for Texas.

    If I decide to pursue this federally, who would I call? Would it be better to go through an attorney? A friend told me she knew of a similar case with a dental office. The complaint initiated an audit for the entire office and past employees for the past several years. Could this be true?

    Thank you

  7. #7
    Join Date
    Jan 2006
    Posts
    28,093

    Default Re: Is Salaried Employee Legal

    For a federal claim, you would contact the Department of Labor. It might cause an audit or it might not but in reality, what difference would it make to you as long as you get what you are due? If there are other employees that got short changed, they are welcome to file their own complaints.

  8. #8
    Join Date
    Jun 2011
    Posts
    15

    Default Re: Is Salaried Employee Legal

    Thanks again - I think I will call the DOL and file a complaint. I doubt if anyone else would - the one who still works there is just happy to be put on "hourly" and now she receives OT pay. I am not in contact with anyone who worked there in the past - we were associates not friends.

    If there is an audit, do they audit all the pay role or just the complainant?

    Thanks again!

  9. #9
    Join Date
    Apr 2010
    Location
    Republic of Texas
    Posts
    18

    Default Re: Is Salaried Employee Legal

    Re: a claim for unpaid wages--

    Texas Workforce Commission (linked above) can investigate a claim and award wages due up to 180 days prior to the filing of the claim, and they may order wages (and overtime) based on the agreed pay rate.

    US Dept of Labor can investigate a claim for unpaid wages and award wages and overtime up to 2 years prior to the filing of the claim--but they may only order minimum wage + overtime.

    Also, the State of Texas has an enforcement and collection mechanism in place which the feds do not.

    There are no sure things, but you can do the math and compute your chances for success.

  10. #10
    Join Date
    Jun 2011
    Posts
    15

    Default Re: Is Salaried Employee Legal

    Thanks, unfortunately, I was on the fence too long and lost the time from the state - I will have to try through the feds. More important then the money is the principal behind it. We had a "department" meeting in late October, I made a statement about the new "part timers" getting paid time and a half for over 40 hours, but those of us on "salary" don't. She sat there and said "Well, I don't think I take advantage on anyone here" !!!!!!!! We couldn't believe our ears and looked at each other in disbelief. I don't care if she is paying everyone by the hour with proper OT. At that meeting she said if we wanted to go "by the hour" then we would lose our full time benefits - 2 weeks vacation WOOHOO!! That was my plan - then I got terminated before I could change it. Lesson learned!

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