Legal Question in Employment Law in New York
I was hired as an hourly employee and recently I was told my employment status is "full-time exempt". I was asked to sign a form stating that I agree to these terms and classification. When I asked how is it determined if an employee is exempt or non-exempt, I was told if you get paid for 40 hours per week, you are exempt. I was also told that even though I'm paid based o 40 hrs/wk at a given hourly rate, that the rate is derived from an annual salary and our payroll company is not able to track vacation, personal or sick time unless it is broken down to an hourly rate. Does this sound right?
2 Answers from Attorneys
No. The test for determining whether an employee is exempt (i.e. not entitled to overtime pay) or non-exempt (i.e. paid for overtime) is very specific. It appears as if your employer is trying to avoid his obligations under both federal and state law. You should talk with an employment law attorney, who will review the facts and advise you of your rights. You can also file a claim with the NY Department of Labor and the U.S. Department of Labor/Wage and Hour Division. Feel free to call my office if you would like to discuss this further.
It sounds as though your employer is trying to pull a fast one on you. The FLSA (Fair Labor Standards Act) is the federal law that governs overtime and wage issues. If you worked more than 40 hours per week as an hourly employee, your employer was required to pay you 1.5x your hourly rate of pay for each hour over 40 in a given week. In seeking back pay, you may be entitled to liquidated (double) damages, thus entitling you to receive 3x your hourly rate for uncompensated hours worked.
If you need further assistance, review my website FLSAattorney.com and contact my office via email.
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