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  1. #1
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    Oct 2014
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    Default Can an Employer Fire a Salaried Employee for Working Less than 40 Hours Per Week

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

    Well, it happened today.

    The main issue they had with me is that they claimed that I had not put in a full 40 hour work week for 8 weeks (non consecutive) from May to November. They require 40 hours a week even of salaried employees.

    That's fine. But they open the building at 8:00AM and lock the building at 5:00PM and never gave me a key nor a code to the building - even after I asked for it. So it is impossible to physically be in the building for longer hours unless someone with a key and code is present.

    I think I have grounds for a wrongful termination suit. What do you think?

  2. #2
    Join Date
    Jun 2013
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    551

    Default Re: Terminated for Working Less Than 40/Week

    Quote Quoting Hamaron
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    The main issue they had with me is that they claimed that I had not put in a full 40 hour work week for 8 weeks (non consecutive) from May to November. They require 40 hours a week even of salaried employees.

    That's fine. But they open the building at 8:00AM and lock the building at 5:00PM and never gave me a key nor a code to the building - even after I asked for it. So it is impossible to physically be in the building for longer hours unless someone with a key and code is present.
    A 40 hour work week is a standard minimum for salaried employees. And working the full 40 hours is more important for salaried personnel as they are paid to work 40+ hours. If you were paid hourly and worked less hours then expected you would simply not be paid for the missing hours (though you could still be fired). As a salaried employee not working 40 hours you were being paid for time you weren't working.

    8am-5pm Monday-Friday is 45 hours, if you showed up and left on time then you would have easily worked 40 hours a week. If these are the only hours the building is open then you either need to work those hours or you need to speak to management, they are welcome to allow you to work other hours, or they can tell you to kick sand, and either work during their business hours like everyone else, or find a new job.

    Quote Quoting Hamaron
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    I think I have grounds for a wrongful termination suit. What do you think?
    You definitely do not have any case for wrongful termination. Wrongful termination means something very specific. If you were not terminated for being a member of one of a select few protected groups of people then it was not wrongful termination. I will save you time looking it up, people who don't work 40 hours a week are not a protected group.

  3. #3
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    Default Re: Terminated for Working Less Than 40/Week

    "Wrongful termination" means a termination reason prohibited by law. Termination reasons prohibited by law include things like race, gender, religion, age, disability and/or reporting the employer's illegal activities to judicial authorities. Nothing in your post indicates you were terminated for any of these reasons.

    There are no laws prohibiting the termination of someone for not working 40 hours per week (no matter whose fault that is), ergo you were not terminated for a reason prohibited by law. Absent an enforceable employment contract or CBA that specifically prohibits your employer from terminating you for not working 40 hours per week (again, no matter whose fault it is), you have no legal recourse.

    Not what you want to hear but nonetheless legally factual.

    Just curious - given that the building was unlocked 45 hours per week, how come you weren't able to squeeze 40 hours' worth of work during that timeframe? Again, just curious, your answer probably won't affect the legalities of your situation.

  4. #4
    Join Date
    Jun 2006
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    Massachusetts
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    24,521

    Default Re: Terminated for Working Less Than 40/Week

    I think I have grounds for a wrongful termination suit. What do you think?

    I think that you do not understand what is meant by a wrongful termination, if you think that. No. You do not have anything even close to resembling a wrongful termination suit.

  5. #5
    Join Date
    Oct 2014
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    10

    Default Re: Terminated for Working Less Than 40/Week

    These were excused absences - doctor appointment, car repairs, etc. I notified my manager early and gave a follow up notice the day-of. He would reply with "OK". I was 10 minutes early every day and left at 5:00-5:10. I am a punctual person.

    All of the other salaried employees were given access - but I was not. My phone was paid monthly so that I could answer emails while not in the office. Their point was I had to be physically present at the site for 40 hours. I took an hour lunch each day, often going off premises, but not always.

    Because I have to pick up my children each day, I have to leave at or near 5:00 but I can return after hours. At no time did I miss more than 1 hour in a day. I could easily make that time up if I was given the opportunity.

  6. #6
    Join Date
    Jun 2013
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    551

    Default Re: Terminated for Working Less Than 40/Week

    Quote Quoting Hamaron
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    These were excused absences - doctor appointment, car repairs, etc. I notified my manager early and gave a follow up notice the day-of. He would reply with "OK". I was 10 minutes early every day and left at 5:00-5:10. I am a punctual person.
    If you can make up your time as a salaried employee, then it is not uncommon to be allowed to take personal time. You were not willing (by not giving up lunch time) or able to make up the time and complete 40 hour weeks. You should have either used your sick/vacation/personal time, or rescheduled your appointments.

    Quote Quoting Hamaron
    View Post
    All of the other salaried employees were given access - but I was not. My phone was paid monthly so that I could answer emails while not in the office. Their point was I had to be physically present at the site for 40 hours. I took an hour lunch each day, often going off premises, but not always.
    If the boss did not want to give you a key they don't have to. If you can't figure out how to work enough hours while you have access to the building that is not your employer's problem. If you could only be in the building 9 hours a day, and you took an hour lunch every day, then the best possible scenario was you would work 40 hours, assuming you were punctual in and out for the day and at lunch. SInce you knew you would have appointments and other commitments at least 25% of the weeks in question (May-today) you should have considered rescheduling appointments, or changing your lunch schedule.

    Quote Quoting Hamaron
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    Because I have to pick up my children each day, I have to leave at or near 5:00 but I can return after hours. At no time did I miss more than 1 hour in a day. I could easily make that time up if I was given the opportunity.
    If you missed 1 hour a day in addition to lunch, then you were not working 40 hours a week, that's all there is to it.

  7. #7
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    Sep 2005
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    Default Re: Terminated for Working Less Than 40/Week

    Quote Quoting Hamaron
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    The main issue they had with me is that they claimed that I had not put in a full 40 hour work week for 8 weeks (non consecutive) from May to November. They require 40 hours a week even of salaried employees.
    You are conceding that this is correct -- you did not put in 40 hour weeks. How many hours were you putting in on average?
    Quote Quoting Hamaron
    I think I have grounds for a wrongful termination suit. What do you think?
    In order for termination to be wrongful you must either have a breach of an employment contract or collective bargaining agreement that restricts the employer's right to fire you at will, or you must be able to show a violation of the law by your employer (e.g., discrimination based on gender, religion, race, age (>40), etc.)

    What you seem to be stating is that the only reason you were fired is because you were failing to work 40 hour weeks, and that you don't think that's fair. You cannot sue your employer merely for unfairly terminating you -- you have to also show that the termination was unlawful. Employers aren't required to be fair.
    Quote Quoting Hamaron
    View Post
    These were excused absences - doctor appointment, car repairs, etc. I notified my manager early and gave a follow up notice the day-of. He would reply with "OK". I was 10 minutes early every day and left at 5:00-5:10. I am a punctual person.
    The fact that you give your supervisor notice that you are going to miss part of your work day, or that he acknowledges your announcements that you need time off by responding "okay", should be sufficient to keep you from getting fired for being absent from work without permission. However, you were fired for a different reason -- being short on hours for eight work weeks. Note also, absent your absences being for a legally protected purpose, your employer can fire you for taking too much personal time during the workday even if you're still managing to hit 40 hours.
    Quote Quoting Hamaron
    All of the other salaried employees were given access - but I was not.
    Then the problem runs deeper than what you've shared here.

  8. #8
    Join Date
    Jun 2013
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    551

    Default Re: Terminated for Working Less Than 40/Week

    Quote Quoting Mr. Knowitall
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    Then the problem runs deeper than what you've shared here.
    They sure do

    http://www.expertlaw.com/forums/show...ht=#post843062

  9. #9
    Join Date
    Oct 2014
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    10

    Default Re: Terminated for Working Less Than 40/Week

    Yes, they sure do.

    The problems are very deep and I don't understand why they didn't like me as an employee.

    I was born with a disorder called Klinefelter's Syndrome so I have XXY rather than XY. I have had many obstacles (learning and social disabilities) to overcome in my professional career, but I work hard to overcome them. I don't think the law covers that as a disability even though it has been a real struggle for me throughout my life. I worked my last job for almost 10 years and left for greener pastures.

    What else can I do to improve?

    - - - Updated - - -

    No, it was not 8 weeks in a row. It was May-November. The manager always gave me the OK in email. I made every attempt to work the full 40 hours, but it was not always possible. I can't work through lunch because you are not allowed to bring food or drink to the work area.

    How can I reschedule an appointment for anything but the times during working hours? You're just looking for reasons to turn someone down.

  10. #10
    Join Date
    Jun 2013
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    551

    Default Re: Terminated for Working Less Than 40/Week

    Quote Quoting Hamaron
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    I can't work through lunch because you are not allowed to bring food or drink to the work area.

    How can I reschedule an appointment for anything but the times during working hours? You're just looking for reasons to turn someone down.
    I'll save the lecture, and simply recommend that if you find yourself in a similar situation in the future you try a bit harder to hit 40 hours.

    Bottom line, there is nothing wrongful about your termination. You can be terminated for any non-protected reason. Failing to work 40 hours/week 25% of the time over the last 6 months will likely be enough cause for your Unemployment to be denied. No reason to look at the past, you aren't getting that job back.

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