Unpaid, Uncompensated Overtime

by Evil HR Lady on October 13, 2008

I have a title, more than two employees, satisfy the salary requirement, and have weight given to my decisions to hire , fire, task assignment, etc… So I’m exempt right?

I am salaried for 40 hr. a week, about half of the work year I repeatedly put in 70 hrs. a week performing predictable,rotational, maintenance labor identical to that of my employees. I work unpaid in the field every Sunday and all summer holidays. My company does not have the budget to hire any staff to perform these tasks that are critical to the deliverables. The employees I supervise are assigned to single service areas and may not work on the broader assignment for which I am responsible. The rotational tasks are weather dependent so regardless of re-arrangements and behind the desk Monday quarterbacking, service must be delivered. The most critical of the tasks can only be performed on weekends when I have accessibility to the sites. HR said you have to work whatever hours it takes to get the job done.

We anticipated this at point of hire, and vague promises were forwarded to compensate with additional paid time off (PTO).

Nothing in writing. I took a vacation after serving these 70 hour weeks for 16 weeks straight. Then received an email upon return informing that I didn’t have sufficient PTO, and will go unpaid for the vacation.

I reminded my supervisor of the vague promises, a date was set to draw up language, this has past with no follow up.

Any ideas?

Yes, but the best one is of no use to you. Never, and I mean never, accept a job offer contingent on vague verbal promises. Something like this should have been in writing as part of the offer letter or in the employee handbook as a matter of policy. Working 16 straight 70 hour weeks would send me over the edge and a vacation or 12 weeks of mental FMLA would be required.

So, where do we go from here? First, you need to take responsibility for getting this fixed. Your boss doesn’t care. He should, but he doesn’t. Nobody cares about your vacation like you do.

You need to make sure you get on his calendar. Go in prepared with what your expectations are. Do not pause for a second if he says, “what do you think is fair?” You know what you think is fair, so make sure you have something to say. Don’t leave without a resolution. If he says, “Well, I need to check with HR and the big boss on this,” say, “Great. Let’s write up a proposal right now and e-mail it to both of them.” Otherwise, he won’t have gotten around to meeting with them and you’ll be working another 16 straight weeks of weekends.

If the vague offer of additional PTO came from him, keep in mind he may not have gotten authorization and he may be getting in trouble. So, it may not be truly possible to give you what he promised you. (My lawyer friends can tell you that in some cases a verbal promise is equal to a written contract, but I don’t know if this is such a case and I’m not a lawyer anyway. I did, however, hear a “pro-lawyer” advertisement on the radio the other day. Seriously. It was weird. Yeah lawyers!)

If you cannot get a meeting (people who are avoiding you can miss meetings like you wouldn’t believe) then type up what your expectations are in an e-mail. This is a last resort, because many people see this as a passive aggressive move. I hate confrontation so I do as much as possible via e-mail (plus e-mail covers your rear end sometimes). Try, try, try to meet in person. But if not, try something like this:

John,

When you offered me [position x] part of the offer included comp time in exchange for the 70 hour weeks I would be expected to work. I would like to formalize this so there are no more misunderstandings.

For each 70 hour week I work, I will receive an additional [half day, quarter day, hour--whatever was discussed previously] in paid time off.

Please let me know if this is not to your understanding.

Thanks,

[your name]

For the first e-mail, don’t copy his boss or HR. We want to stay out of it and it won’t help your cause. If his offer was outside of company policy he’ll get in trouble and you don’t want him to get in trouble if you can help it. (A happy boss is more likely to give you the time off you deserve).

If he doesn’t respond, send him a follow up e-mail saying that you understand this is now in place and you are acting accordingly.

Then ask yourself this question, “why am I working for such a place? Do the benefits outweigh all the negatives?” If the answer is no, get your resume updated and start looking. I certainly wouldn’t want to work under the conditions you are describing. Of course, I’ve worked part time for 5 years now, so I’ve grown soft.

(And PS–before someone comments and says “maybe she’s not really exempt!” we’re assuming she is exempt. Hire/Fire and supervisory responsibilities tend to make one exempt. If she’s doing a lot of the actual work and it’s not professional level work, you may be right, but we are assuming this is an exempt position.)

{ 12 comments… read them below or add one }

Chris - Manager's Sandbox October 13, 2008 at 2:56 pm

This sounds a lot like an FLSA violation to me, no?

You’re either paid for your insane overtime and weekend work, or you’re not. If you’re not, then you should be able to take a vacation after three months with no issues, unless they have the worst vacation policy in the world. People amaze me!

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Evil HR Lady October 13, 2008 at 3:00 pm

Not if you’re exempt–exempt means exempt from FLSA regulations. Overtime isn’t required. Neither is paying by the hour.

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Rodolphe Mortreuil October 13, 2008 at 4:26 pm

Good to have you back, Evil HR Lady!

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nectarines October 13, 2008 at 4:56 pm

I’m really intrigued to learn that EHRL doesn’t like confrontation. I don’t, either, and I’ve always sort of assumed that would keep me from having a successful career in HR. But this is interesting proof otherwise!

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Liz October 13, 2008 at 6:43 pm

Good advice. Sadly this type of situation is not particularly uncommon. The key, as you said early on in your response is to get everything in writing before you take the job.

My advice is to start looking for a job if that is possible. Once a pattern like this one has been established it will be hard to scale back your employer’s expectations of your work or your PTO time. Even if your boss agrees to let you take additional PTO to compensate for long hours you run the risk that your boss will feel like you aren’t working hard enough or that you are taking too much time off simply because your new agreement is different than what your boss was previously accustomed to.

Update your resume and get a job search going.

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Evil HR Lady October 14, 2008 at 2:28 am

rodolphe–Thanks. I’ve been a bit busy lately.

nectarines–avoiding confrontation can have it’s benefits and curses. My hatred of it encourages me to solve problems before they get to the confrontation stage. It also helps me negotiate a successful outcome without confrontation. However, it makes doing the really hard stuff even harder. But, keep in mind that HR is far more than most people think it is. There are tons of areas that you don’t need good “confrontational” skills.

Liz–I agree. Get the heck out of there.

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HR Maven October 14, 2008 at 11:44 am

One more comment to the poster.

I would take a few minutes and write down the events and time line (like in the post).

I would write up a log, what was promised initially, what the conversations with your supervisor covered (with dates of discussion and promised resolution) and now the vacation.

This may come in handy if you 1) approach HR and ask for assistance with this issue and 2) if you decide that you would like someone at Wage and Hour to look at your claim.

I suspect that you were promised something that supervisor can’t make good. And I would, as the other posters have said, update your resume and start looking.

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Kelly October 14, 2008 at 4:33 pm

Another thing worth keeping in mind is that being exempt should work to this employee’s favor during that other half of the work year. Not getting paid extra for 70-hour weeks means you also can’t be paid any less for 30-hour weeks, if you can get the work done in 30 hours.

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HR Underling October 16, 2008 at 12:52 am

Pardon the interuption Evil Lady but I am tagging you. Sorry…

I am sure you remember the rules:
1. Link to the person who tagged you.
2. Post the rules on the blog.
3. Write six random things about yourself.
4. Tag six people at the end of your post.
5. Let each person know they have been tagged.
6. Let the tagger know when your entry is up.

Six random things about myself…

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Chris Hamilton October 16, 2008 at 2:03 am

Hi there,

I tried contacting you a while ago but never received a response, did you receive my previous email?

Thanks

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Dave October 18, 2008 at 4:52 pm

A great book on how to have such conversation is Crucial Confrontations – never easy, but very worthwhile. In this case, while looking for another job (since this probably isn’t going to get a great resolution) I would: 1) keep (and recreate for the past if possible) a log of the hours you put in – if a lawyer can ever help it will likely be because you’ve quit and want to sue for overtime pay based on the verbal promise. You might not win, but might get a partial settlement and you’ll certainly alert them to the fact they treated you badly and shouldn’t do this to others. It’s a judgment call as it may follow you, but if you have another job by then and you do well, it won’t hurt. 2) Use this opportunity (since you know you’re probably leaving) to practice having some risky conversations requesting the pay or vacation… learning to have confrontations in a positive tone is a hugely important skill for your future work.

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Anil October 19, 2008 at 2:53 pm

First time on your blog. Good posts! Got a lot to read yet…

This post got me thinking – Unless the manager was working with eyes closed, wouldnt he/she have noticed the 70 hrs already? Maybe, the best they could have done was avoid it & get more work done! So effectively, would going back to the same manager help at all?

The approach to talk-first-mail-next is ok, it should have been the norm! But, if it's done to keep your boss 'happy'…hmmm…I would rather stand-up to what's already been discussed…

Working 70 hrs for 16 straight weeks, surely the person must love the job or for a very compelling reason!! I wouldnt throw it away for a manager who doesnt stick to his/her commitment..rope in the 'Big Boss' at the soonest…

Cheers,
The HR Store

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