`Am I truly exempt from overtime?'

CAN THEY DO THAT? / WORKPLACE ADVICE

August 03, 2005|By CARRIE MASON-DRAFFEN

Q: I'd like to know if I am eligible for overtime under the new U.S. Labor Department rules that took effect last year. My company considers me exempt from overtime because I am a sales manager. But I also sell, earn a commission and, most important, I draw a salary of less than $455 a week. But managers have to earn at least that under the new rules. Am I truly exempt from overtime when I work more than 40 hours a week?

A: You may be exempt from overtime, but not because you are a manager.

As you rightly pointed out, in order for the company to claim a managerial, or executive, exemption for your position, you'd have to make at least $455 a week. But you would be exempt if you primarily work as an outside sales employee. That is, if you "customarily and regularly" engage in work away from the office, the regulation says. In addition, if most of your income comes from commissions, you may also be exempt from overtime. For more information, call the U.S. Labor Department at 866-487-2365.

Q: For years we received a raise on our birthday. I was always the last to receive an increase because I was born in November. That late date hurt me four years ago when our boss bought out her partner and we all decided to forgo our customary raises until the owner could get financially situated. But by October, when she took over the company, everyone had received their birthday raise except me. Am I still entitled to the raise for that year, especially since we won't receive more money for a while? I feel cheated, and when I mentioned it to the boss, I was told, "You all agreed to no raises." It has been four years now, and no raises are on the horizon. Can I legally push for the raise I should have gotten and any retroactive payments?

A: You have every reason to feel cheated because your sacrifice to help the company began so much earlier than everyone else's. Unfortunately, the company's refusal to pay you the raise isn't illegal unless the action broke a contract that stipulated the increase or singled you out because of such things as your race, national origin, age or gender.

"The only basis to demand [the raise] is if the employee had a contract or binding agreement to that effect," said Jeffrey Schlossberg, an employment attorney at Ruskin, Moscou, Faltischek in Uniondale, N.Y.

"In the absence of a contract or binding agreement, an employer is free to change the terms and conditions of employment at any time unless doing so is the result of unlawful discrimination."

Although Schlossberg believes it's "odd" that you're the only employee who didn't receive a raise, "there is no indication that the basis for not giving the raise is discriminatory."

All may not be lost, though. Perhaps you can prevail upon your boss, in writing of course, to give you two raises when the company is back on its feet, the next one you're eligible for, plus the one you missed.

Carrie Mason-Draffen is a columnist for Newsday, a Tribune Publishing newspaper. E-mail her at yourmoney@tribune.com.

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