FLSA Violation?
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FLSA Violation?
While interviewing for a new position, my potential boss said a few things that don’t add up. The position is salaried,and made sure to emphasize that overtime will never be paid. If you are even one second late clocking in, you are sent home for the day with no pay. No exceptions. If you need to leave a few minutes early, you will not be paid for those few minutes, unless you use PTO. You are paid based on your timecard. You are given 6 days PTO and no other paid time off for the first year. Once PTO runs out, you will not be paid for being out of the office for doctor’s appointments, etc. Will not clarify if the position is classified as exempt or non-exempt. She said it will be determined by someone higher up than her, but the rules are the same. This is fishy, correct? I won’t accept a position here but I am concerned that the employees are being taken advantage of. I’m afraid that a language barrier may be preventing many employees from knowing this isn’t OK. I didn’t realize until the interview that very few people in the office speak English. Do I report this to the local Dept of Labor or is this all OK?
Asked on April 24, 2018 under Employment Labor Law, Texas
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
You have identified a number of illegalities and potential illegalities. In no particular order:
1) If you are salaried, they can't deduct pay or make you use PTO for leaving early--they can fire you (employent at will), but you must still be paid that day's salary in full, regardless of hours worked.
2) Similarly, if you are salaried and you show up for work, you must be paid for the day, even sent home early. Salaried staff who work at all or appear for work must be paid.
3) Salaried staff are not paid based on time card; they get the same weekly salary no matter how many hours worked.
4) Some salaried staff earn overtime, if their job description and authority does not meet at least one of the exemptions from overtime found on the U.S. Dept. of Labor website.
5) All positions are either exempt or non-exempt, and the rules are not the same.
Certain things you describe are legal: there is no obligation to give *any* PTO, so the employer can, if it chooses to give some, cap it at 6 days per year; once you use up PTO, you are not paid if you miss time at work, including for the doctor, and could even be fired for absenteeism if you miss work.
However, for the most part, what you write about appears to be violations of the FLSA. You could contact the state or federal department(s) of labor to file a complaint.
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