My boss illegally cut my pay

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(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.)

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 EvilHRLady@gmail.com.

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