PTO and overtime issue

[RSL7657]

Background: My title is "Director of Accounting Services". I work in a two-person accounting department. Until last year, I had a second person under my department (making it a three-person department), and qualified as exempt. When they took away my assistant, I was changed to an hourly employee. I am required to work 48 hours per week (including 8 hours of overtime) in order to earn the same amount of money that I used to make as a salaried manager.

Problems: If I am sick one day, I cannot take PTO to make my paycheck whole again because the company will not pay PTO if I already have 80 hours in the two-week pay period.

If I want to take a one-week vacation, I am forced to take a 23% cut in pay because I can only use 40 hours of PTO in a week. This also means that while every other employee in the company gets two weeks of paid vacation, I really only get 77% of two weeks paid vacation.

During this past pay period, I worked 48 hours in the first week, and 32 hours in the second week. I asked for 8 hours of PTO to fill the second week to 40 hours, but I was told that was not possible because I already have 80 hours for the pay period.

I really feel like I am being screwed by my employer, but I am not sure if there is any legal recourse.

 

[cbg]

In 49 out of 50 states, I would say, "Sucks to be you, but it's legal. Poor management, poorly thought out, poor just about everything, but legal."

Because you are in California, I hesitate to make a blanket statement to that effect. California has some very unique laws and while I don't THINK they have implemented any that would make this practice illegal, I'd want confirmation first. It's been a long time since I managed leave time in California (heck, it's been a long time since I managed leave time). If no one here responds more definitely, check with the state DOL. Be prepared to be told something akin to my statement in the first paragraph.

 

[RSL7657]

Thanks for your response. I agree - it sucks to be me. I also agree with the "poor management" comment. I'm not 100% convinced that I don't qualify as exempt under the Administrative exception though. I really think I should still be a salaried (and exempt) manager.

Believe me, I am actively seeking employment elsewhere but my opportunities are limited in the local market and I do not want to relocate. It is also difficult to find new employment when you are less than ten years away from retirement.

Hopefully someone can give me a more definitive answer.

 

[ElleMD]

Even if you qualify as exempt, your employer may always legally keep you non-exempt. That is totally legal. It is very rare for PTO to be allowed for OT hours.

 

[RSL7657]

Even if you qualify as exempt, your employer may always legally keep you non-exempt. That is totally legal. It is very rare for PTO to be allowed for OT hours.

Well, I'm not asking for my PTO to be allowed for OT hours. In the specific example of my last pay period, I requested 8 hours to bring my hours for the week up to 40 total. No OT involved at all. If I were to be re-classified as exempt (like I used to be), OT does not even enter into the equation. But thank you for your response anyway.

 

[army judge]

Background: My title is "Director of Accounting Services". I work in a two-person accounting department. Until last year, I had a second person under my department (making it a three-person department), and qualified as exempt. When they took away my assistant, I was changed to an hourly employee. I am required to work 48 hours per week (including 8 hours of overtime) in order to earn the same amount of money that I used to make as a salaried manager.

Problems: If I am sick one day, I cannot take PTO to make my paycheck whole again because the company will not pay PTO if I already have 80 hours in the two-week pay period.

If I want to take a one-week vacation, I am forced to take a 23% cut in pay because I can only use 40 hours of PTO in a week. This also means that while every other employee in the company gets two weeks of paid vacation, I really only get 77% of two weeks paid vacation.

During this past pay period, I worked 48 hours in the first week, and 32 hours in the second week. I asked for 8 hours of PTO to fill the second week to 40 hours, but I was told that was not possible because I already have 80 hours for the pay period.

I really feel like I am being screwed by my employer, but I am not sure if there is any legal recourse.

Your last sentence sums it all up very well.

Depending upon your age, race, ethnicity, sexual persuasion, etc... and the actions the employer has taken against others, you might be sitting on some type of discrimination lawsuit.

It would be worth it to speak with three or four employment lawyers in your county.

You are also in the best states to litigate the issues you're facing.

Your state is very employee friendly.

I wish you well, and encourage you to seek several legal consultations.
The consultations and the subsequent litigation generally won't cost you out of pocket, either.

The worst part of your story was the jump from 40 to 48 hour work weeks, and doing the same work.
Yet, with the right lawyer and fact pattern, that could be your saving grace.

My first case as a lawyer was representing my dad in suit similar to yours.
Yes, we won in federal court.
It took over five years, and about seven for dad to get paid.
My employer at the time was the US Army, and my superiors were very supportive.

 

[RSL7657]

Thank you so much for your encouraging reply. I work for a company that has operations located in many states, but only two of the locations are in California. Sometimes I get the feeling that they do not fully understand California law very well. In my location, there are about 200 employees (including about 20 managers). I am the only manager that must live by these rules. The HR Director has only one part time employee working in his department but he is still considered exempt. I'm not sure if I can make a case that I am a part of a protected class - although I am the oldest manager. All of our sales managers are considered exempt even though they spend less than 20% of their time doing outside sales (the test is supposed to be "over 50%). So they clearly bend rules in some areas.

Then again, if this drags out for five years, that will be just about the time I plan to retire. In the meantime, I am maxed out on PTO accrual because I just can't find a way to use it without suffering a significant economic penalty. I feel like I am losing money every paycheck because I can't accrue any more PTO and I can't use the PTO I have.

 

[army judge]

Thank you so much for your encouraging reply. I work for a company that has operations located in many states, but only two of the locations are in California. Sometimes I get the feeling that they do not fully understand California law very well. In my location, there are about 200 employees (including about 20 managers). I am the only manager that must live by these rules. The HR Director has only one part time employee working in his department but he is still considered exempt. I'm not sure if I can make a case that I am a part of a protected class - although I am the oldest manager. All of our sales managers are considered exempt even though they spend less than 20% of their time doing outside sales (the test is supposed to be "over 50%). So they clearly bend rules in some areas.

Then again, if this drags out for five years, that will be just about the time I plan to retire. In the meantime, I am maxed out on PTO accrual because I just can't find a way to use it without suffering a significant economic penalty. I feel like I am losing money every paycheck because I can't accrue any more PTO and I can't use the PTO I have.

If you're that close to retirement, you are protected from age discrimination.
I can't say if you are being discriminated by federal standards, alone.
There are also California standards that come into play.
Again, I encourage you not to delay, but discuss this at no initial cost with at least four or five local employment lawyers.

Your post caught my attention because of my prior experience.
I saw what age discrimination did to that fine man.
I saw what it did to my mother.
I was honored to help him seek justice, and the facts of your case are similar to his, 35 odd years later!!!!

If you're 40 years or older, YOU are already in a protected class, sir.

http://www.nolo.com/legal-encyclopedia/california-employment-discrimination-31690.html

http://www.eeoc.gov/laws/types/

 

[RSL7657]

If you're that close to retirement, you are protected from age discrimination.
If you're 40 years or older, YOU are already in a protected class, sir.

58 in a couple weeks. Older than I feel.

 

[txls]

Before assuming discrimination and getting attorneys involved, I would recommend that you do more homework with California DOL. You may be correct that whomever is administering PTO does not understand CA law. Then ask for a meeting with someone higher up and present the findings of your research. I'm not familiar with CA laws, but the odd thing to me is that they are looking at 80 hours per two week period. Even though you are paid two weeks at a time, as far as hours each one week period should stand alone. So again its possible that someone really doesn't know what they're doing. And it's also possible that it's perfectly legit. Being asked to work more hours for less money happens.

 

[RSL7657]

... Being asked to work more hours for less money happens.

Very true, but I don't think that's what is happening here. Essentially, what they have done is to make it impossible for me to use my PTO without being penalized by a smaller paycheck. It forces me to come to work when I am sick and expose other employees when I really don't want to. It causes me to forgo taking any time off for family vacations. And it only impacts me - no other employees at my location are subject to these restrictions. I doubt that it has any significant impact on the bottom line.

But I agree heartily with what you are saying here: "the odd thing to me is that they are looking at 80 hours per two week period. Even though you are paid two weeks at a time, as far as hours each one week period should stand alone."

 

[cbg]

Just one clarification. Someone mentioned it but I want to be sure it is clear.

If someone does not qualify as exempt, it is illegal to treat him as such.

If someone does qualify as exempt, it is still legal to treat him as non-exempt.

Non-exempt is the default. All employees can legally be treated as non-exempt. Microsoft could treat Bill Gates as non-exempt if they were willing to pay the overtime.

 

[ElleMD]

Surely you aren't the only one who is non-exempt in the entire place. Are you being treated differently in some adverse way than other non-exempt employees? There are over 100 different exemptions out there and it is very possible these other folks you see as similarly situated to you fall under exemptions you are not eligible for. The HR Director comes to mind. Sales Managers too.

If you are paid OT for the 8 hours over 40 in a week, they are meeting the obligation under the law. If the combination of work and PTO may not equal more than 40 in a week, that is legal. What you see as a penalty, others would see as a bonus in that they only have to use 40 hours of PTO for an entire week off, even though they usually work 48, or that if they take a day off sick they don't need to use PTO. Unfair is subjective. Even if they did permit you to use PTO for 48 hours for a week's vacation, they would only have to pay it as straight time, with no time and a half due. PTO hours do not count toward OT, unless the company voluntarily opts to do so or you have a contract which states this is the case (very rare). There are no laws in any state which guarantee any set amount of hours in a given week. That is up to the employer, even in CA.

I also see absolutely nothing that even hints at any sort of illegal discrimination.

 

[RSL7657]

Surely you aren't the only one who is non-exempt in the entire place. Are you being treated differently in some adverse way than other non-exempt employees? ....

I'm sorry if this sounds a little rude, but do you ever actually read what I post before you make your comments? As I said above, "In my location, there are about 200 employees (including about 20 managers). I am the only manager that must live by these rules. The HR Director has only one part time employee working in his department but he is still considered exempt."

In addition, not one of the other 180+ hourly non-exempt employees is expected to work 48 hours a week in order to earn their salary. If I take even one hour of the 168 hours of PTO that I have earned, I lose the ability to actually work the 16 hours of overtime that I am required to work in each two-week pay period in order to make what I was promised. Imagine if every time you took a sick day it cost you $600 in earning potential. Are you starting to get the picture yet?

I hate to be so abrupt, but you ask questions that have already been answered and say things based on false assumptions.

 

[txls]

Are you absolutely certain that you are being treated differently from every other person in the organization? Most people are not generally that much in the know about every employee unless you're payroll or HR. If you are certain that you are being singled out, have you asked someone about it? If you believe you are being illegally discriminated against, do you believe that you can prove it? If you believe that you are being paid short in an illegal manner, prove it and take it higher up.

If you believe your current situation is unfair, again you can talk to someone at your organization and ask them to be fair, but realize they don't have to change a thing if it's all legal.

It's impossible for anyone here to know enough to say without a doubt whether anything illegal is going on.

 

[RSL7657]

As I said, I am the Director of Accounting. I see every payroll for my location. I did not say that I was being treated differently from every other person in the organization - only that I am being treated differently from every other employee at my location. I do not see the Payroll for the other locations.

 

[army judge]

As I said, I am the Director of Accounting. I see every payroll for my location. I did not say that I was being treated differently from every other person in the organization - only that I am being treated differently from every other employee at my location. I do not see the Payroll for the other locations.

I see merit in your situation.
It will cost you noting to discuss this with a few local lawyers.
See what you can learn, then decide.

There's far more to your situation that words can explain.
If my dad hadn't been abused, I wouldn't be as sensitive to it as I am.

See a few lawyers, then decide.
Good luck.

 

[ElleMD]

Being the only manager who is non-exempt is not indicative of anything. It is the duties which govern exemption and it is very possible that without more employees to manage you do not qualify for exemption. Others with different duties may still qualify even if they do not supervise.

It sounds less like you are required to work 48 hours a week than if you want to make the amount of money you would like to make, you must work 48 hours a week. Totally different scenarios. The result is the same. If you can not use PTO to get paid for more than 80 in a pay period, or 40 in a week, that is legal. It is incredibly common to have such a policy. Are other non-exempt employees allowed to use PTO for 2 hours if they have already worked 46 that week?

You seem to want to be exempt for some reason. You can not force your employer to make you exempt. You just can't. Being non-exempt is not a penalty. While you wish you could take PTO as you wish, your colleagues probably wish they got OT when they worked more than 40 hours in a week. As I said, fair is relative.

 

[RSL7657]

Being the only manager who is non-exempt is not indicative of anything. It is the duties which govern exemption and it is very possible that without more employees to manage you do not qualify for exemption. Others with different duties may still qualify even if they do not supervise.

It sounds less like you are required to work 48 hours a week than if you want to make the amount of money you would like to make, you must work 48 hours a week. Totally different scenarios. The result is the same. If you can not use PTO to get paid for more than 80 in a pay period, or 40 in a week, that is legal. It is incredibly common to have such a policy. Are other non-exempt employees allowed to use PTO for 2 hours if they have already worked 46 that week?

You seem to want to be exempt for some reason. You can not force your employer to make you exempt. You just can't. Being non-exempt is not a penalty. While you wish you could take PTO as you wish, your colleagues probably wish they got OT when they worked more than 40 hours in a week. As I said, fair is relative.

What you fail to understand is that my colleagues can take a day of PTO without being docked $600 off their paycheck. You also don't seem to understand that my hourly pay was based on me having to work 8 hours of overtime just to break even with what my salary was when I was exempt. So getting paid OT is absolutely zero benefit to me. But the cards are stacked against me because I can't possibly work those 8 hours of overtime if I want to use any amount of PTO.

 

[ElleMD]

Reducing your wages is not illegal. You have fewer responsibilities with less employees to manage so you would be hard pressed to even claim the reduction was not justified. You aren't entitled to make what you used to make, or to make any set amount of money. You are entitled to be paid at least minimum wage for each hour worked. You are entitled to OT as a non-exempt employee. Your employer is not required to make sure you suffer no loss of income when you take time off work, nor keep your take home pay the same when your responsibility lessens.