My boss illegally cut my pay

(MoneyWatch) Dear Evil HR Lady,

My employment title is "construction superintendent," although we all know that titles typically mean nothing.... On "good" weeks, when work is steady, I am paid the same amount on a weekly basis, providing I turn in 40 hours or more against cost codes, even though many times I may put in up to 75-80 hours per week. With that being said, it appears that I am being treated as an exempt employee. My question comes about when there are weeks where I may only put anywhere between 30-35 hours. On those weeks, I am only paid for those hours, assuming if I do not use vacation time to compensate for the rest.

Do you have any advice to help clarify this situation? My concern lays more heavily with the time deducted rather than the amount of time I work over 40 hrs per week. On a side note, the HR department at my employer is also the owner, and she is not approachable for the most part. She portrays herself as never being incorrect, even when she calculated my vacation wrong and did indeed owe me another week that she was previously denying me.

You are right that title doesn't really mean anything in terms of employment law. Under the Fair Labor Standards Act (FLSA), people have to be paid time-and-a-half when they work more than 40 hours in a week, unless they meet qualifications for "exemption." As a general rule, this means people who manage other people or who have a professional job that is generally performed independently, among other things. (This is a generalization, and the rules are much more complicated than that, but that is a good, basic, guideline.)

• I'm exempt: Can my boss deduct PTO for doctor's appointments?
• Does my employee have a medical problem or a performance problem?
• You can't make someone salaried to avoid overtime payments

If an employee is exempt, the company does not have to pay overtime, but rather must pay the same amount every pay period. So if the salary is $1,000 a week and the person works 80 hours in that week, he should receive $1,000. But if the person only works 33 hours that week, he must also receive $1,000. If the company docks pay (except under very special circumstances), then they also are responsible for paying overtime for any hours worked over 40 in all previous and future weeks.

I realize you are all now snoozing because this is the most boring answer ever. So let's make it a little more dramatic: Your boss is wrong.

Now, she can require that you use vacation or paid time off to cover any hours below 40. There are no federal laws around vacation, so unless your state prohibits that (unlikely), it's fine because your paycheck remains constant. But if you use up all your vacation time, you are still owed the same paycheck each week. (This is assuming your job responsibilities would qualify you as exempt, which they may well not.)

What can you do about this? If the boss was approachable, I'd recommend printing out a copy of the FLSA guidelines from the link above and sitting down and discussing how they apply to you. Many small business owners have no clue how labor laws apply to them. They are doing what they think is best for their business, and they haven't thought about how many laws there are out there.

But since she's not approachable, this may not work very well unless you can demonstrate that it is in her best interest to obey the law. Try something like this:

"Hey, Donna, I just learned that if you cut an exempt employee's pay for not working a full 40 hours, that automatically means he's eligible for overtime for any time worked over 40 hours for the past two years! Isn't that crazy? So, I guess you better adjust my last week's pay check or you'll have to pay me out the wazoo for all those hours I worked this summer." Then you can direct her to the U.S. Department of Labor's website for further questions.

But given the fact that your boss is, as you say, "never wrong," this solution probably won't work. Instead, you can call up your local Labor Department branch and file a complaint. They will listen to what you have to say and may or may not investigate. If they investigate, regardless of the outcome, your boss will be, shall we say, unhappy. Not that I have any sympathy for her. (Well, maybe a little. Government investigations are never pleasant, even when you are 100 percent right. And since she appears to be in the wrong here, it will be extra unpleasant.) Make sure you pull together any relevant documentation, such as copies of time cards, evidence of hours worked that weren't recorded on time cards and pay stubs. If your coworkers are being treated the same way, you may wish to do this as a group.

Of course, for you making your boss angry may not be worth the risk. You may prefer to suffer through this while looking for another job and then file a complaint after you quit. This is a perfectly rational thing to do. It's also rational to say, "You know what? This part of the job stinks, but otherwise it's a pretty good job. I don't want to rock the boat."

But at least know you are right and she's wrong. 

Have a workplace dilemma? Send your question to [e-mail].

[democracy8]

I went through the exact same experience about 15 years ago. I kept all pertinent records regarding hours worked and pay received and quietly looked for another job. After I gave my resignation, I submitted my records to my state DOL. My ex-employer was forced to pay me time-and-a-half for all hours over 40 hours per week, which amounted to thousands of dollars.

[annie_lou_who]

MARINE1957, I have to disagree with this statement "Soon, all would be taken care of at no cost to the employee and no loss of money payed an attorney who typically gets 30%"

No cost to the employee to belong to a Union? Wrong. It costs a lot. First off there are Union dues. If he's a member of LIUNA - the Laborer's Union - he could expect to pay $0.90 per hour worked. That is $1,872 per year if he only worked 40 hours per week. He'd have to get a settlement of over $6,240 for him to just break even by having a lawyer vs having a Union.

In addition there are meetings to attend, strikes that go on, and the inability to work in a fluid environment where you are rewarded for being a better worker. Unfortunately your pay is tied to the contract and your job title. Sorry if you went above and beyond Charlie. You can't be compensated for that.

Unions are not the devil that some make them out to be, but they are certainly not the cure for the common employee either.

['Zahc']

Although I am now, 'retired', having been placed on disability (legitmately, I can assure you!), and while I understand that the job market is no longer fluid, or--on the other hand--reliably guaranteed, it nevertheless amazes me to read of so many employee problems (mostly, 'lousy' bosses, crummy hours, too much work, and always (in consequence), too little pay), that these days make employment look like involuntary servitude !!!!!!
During all the many years of my adult employment, I always sought (and got) a large measure of autonomy. I KNEW what to do,and was best doing it, and not being in any way, 'micro-managed', or harassed by superiors.
Of course, one does take the risk of being fired, but somehow, never was, even though--at times--I had to initiate little, 'heart-to-heart' chats with my managers.
Maybe the rules have changed. Maybe I simply don't, 'get it', largely because I no longer have to.
But, years ago, I once told an Administrator that my, 'work ethic', allowed him to sleep comfortably unconcerned at home each night. He COULD always fire me, but if both of us were suddenly having to look for employment, I told him, I coud easily find a job the next day. Could he?
It was rash, perhaps. But, I DID get the raises and autonomy I craved, and, incidentally, 'E.O.M', at the three places I worked the majority of my aduld life at.
You kind thoughts, please.
Thanks,
'Zahc'

[marine1957]

Here is a great example of union v.s. no union. Because there is no union, the company illegally cuts the employee's pay - typical of most companies. Without a union, the employee is left with only a gigantically expensive legal system. Had this employee been part of a union, all he would need to do is contact his union steward to set things in motion. Soon, all would be taken care of at no cost to the employee and no loss of money payed an attorney who typically gets 30%.

There are negative things about the union such as being unable to fire a man or woman who won't work. Even so, the union guarantees fair treatment for 90% of the employees. Meanwhile, the union serves to get workers fair pay scales. They got us $25 per hour for skilled labor and the CEO got $500 per hour. (I've been there)

But there are far more negative things about management's treatment of employees in general such as getting fired for trying to negotiate a pay raise for patent success and other gains for the company that seem to go unrewarded more often than not. Management would pay only $13 per hour for an engineer's position but the CEO got $1,000 per hour. (I've been there)