RE: Re: employment law, overtime

Subject: RE: Re: employment law, overtime
From: "Kelly Keck" <kkeck -at- imagine-one -dot- com>
To: <techwr-l -at- lists -dot- techwr-l -dot- com>
Date: Fri, 25 Jan 2008 08:31:55 -0500

I'm chiming in on this one a bit late, but here's my understanding of the
exempt/non-exempt issue. This is all based on Federal law, from reading
I've done on the Department of Labor's web page, and it's all "if memory
serves." That is, it's been several months since I looked any of it up, and
I'm not a lawyer or an HR person.

First off, to not be paid overtime, it's not enough to just fall into one of
the "exempt" categories. You also have to be paid on a salary, rather than
hourly, basis. Where this gets confusing is that people who are truly
salaried might still have an hourly rate on their timesheet. (Presumably it
makes life simpler for payroll and accounting personnel.) To be salaried,
one has to be paid the same in any week work is done, regardless of the
hours worked. The downside is that, yes, if you're salaried, a 60-hour week
is worth the same as a 40-hour week. The plus side is that a salaried
person can't be docked pay for working a short week either. (Not to say
that not getting your work done or breaking company policies won't still get
you fired.) For example, if a snowstorm knocks out power to your office and
it's closed for three days, a salaried person cannot be docked for the time
they didn't come in. So, if that's not true of you, then your company isn't
treating you as salaried, and you might be eligible to be paid for overtime.

Ultimately, everyone has to decide whether they feel like they're being
treated fairly or not, and if not, what to do about it. Voting with your
feet is always an option. Also, if your company is actually breaking
employment law, maybe it's worth pressing the issue.

Being confrontational wouldn't be my first choice if I liked the job and
wanted to keep it. But what about a polite query to your boss or to HR?
"I'm a little confused, because I've been working extra hours with no pay,
but [explanation of why you're legally entitled to overtime, with references
cited] seems to suggest that that's not how it's supposed to work."
(Technical writers, after all, ought to be good at communicating clearly
while still being tactful and respectful--we have to do it with SMEs and
users all the time.) That might be enough to correct the issue. Granted, if
a company is willfully taking advantage of you and flouting the law, the
polite inquiry might get you nowhere. But, in that case, at least you'll
know exactly where you stand, and can fall back on the "vote with your feet"
option, or report those unethical practices. (For self-preservation's sake,
if it were me, I'd be reporting them only after I had a couple other good
job leads lined up, or a back-up plan that would allow me to keep paying my
bills if I did lose my job.)

I know there's always a concern about getting fired if you call attention to
illegal or unfair practices. But something to remember is that the
companies who take advantage of their employees do it because they know they
can get away with it. If they fire someone for refusing to work 80-hour
weeks, it's because they know they can find someone else who will. When the
third or fourth person quits after finding out that that's the expectation,
the company might be forced to change their tune.

Kelly Keck


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