[drmikefryer]

SITUATION: Employed as an Asst. Manager but given specific hours to work each week. Never varries. Specified hours are 54 per week PLUS 42 hours on call to solve problems. When on call, I must be on the property (apartment provided) and must answer all emergency and routine calls at all hours of the night. Employer says I must work my days off to be further trained for the position. No compensatory time allowed or given.

Further, employer has declined my written request to establish 1 hour per day for structured training. Employer says it must be done "on the fly" during the work days and during my days off.

Q1: Is this a clear definition of an exempt employee or does it tread upon a non-exempt because specific hours are required?

Q2: Can an employer require you to work on your day off if you are exempt?

Q3: Any legal issues with the decline for training and requiring it to be done on days off?

Thanks

[ScottGem]

First its not a good idea to piggyback your question on someone else's. This can lead to confusion. You should start a new thread. So I've moved your question to its own thread.

Q1 Not enough info,

Q2 Requiring someone to be on call and work on scheduled days off comes with certain jobs.

Q3 Not a problem if compensated for the time.

[drmikefryer]

Scott: Thanks for the response.
Q1: I thought that if a person was assiged specific working hours, he was then an hourly employee. Therefore, OT would be in order, even though the employer calls this person exempt?

Q3: No comp or pay for working on days off. Work is by "requirement", not optional. Is that legal?

Mike

[ScottGem]

No exempt employees are assigned base working hours as well.

Depending on the nature of the job, its legal. As an IT person, I was frequently called upon to do work on weekends when systems weren't being used.

[Zazonker]

drmikefryer. What type of business are you in? This reads quite a bit like a resident manager in an apartment complex, but the training aspect hints of something else.

The "salaried exempt" vs "non-exempt" categorization is a tricky thing to deal with. Defined working hours alone doesn't make a position "non-exempt". But, classifying a position as exempt when it really shouldn't be is relatively common. I can get into the whys and wherefores but that would make this response a thesis.

As Scott points out, the nature of the job matters; so does experience level. In a company at which I used to work, we went through a major effort relative to junior programmers. The jist of it was, are they really independent enough to be considered exempt?

What is your motivation for raising the issue? Are you looking to get your job reclassified as non-exempt? Are you planning legal action against your company? Are you trying to pressure them to do things differently?

We can probably provide better info for you if you provide a little clarification on what your job actually is and what you are trying to accomplish.

[drmikefryer]

Hi Zaz: Thanks for the response. Yes, Asst. Mgr of retirement complex. Am new to the industy. Mgr is 24/7 and very smothering. Says I'm not learning fast enough but refuses to train me on company time with a minimum of "structured learning" that I've requested. Says it will be "on the fly" and on my time off. Problem is I'm working 52 hrs week PLUS on call another 42 hrs and I need my time off. I'm 66 yrs old and never bargained to work 24/7. That's OK for the young guys trying to make a name for themselves but I've been there, done that and don't want to do it again. However, I give 100% when I'm on the job. Motivation is to know what ground I'm on so if I am "directed" to work on my off hours without compensatory time and don't do it, am I elegible for termination?

[excon]

Motivation is to know what ground I'm on so if I am "directed" to work on my off hours without compensatory time and don't do it, am I elegible for termination?

Hello d:

The term "eligible for termination" doesn't apply. EVERYBODY is eligible for termination, when you work "at will". That's a legal term meaning you can be fired for ANY reason whatsoever...

So, it doesn't matter if you complain about being trained OFF the clock, or ON. You can be fired. Will you have a case against them AFTER they let you go?? Maybe.

If this was me, I'd be looking for somehthing else. I'm 66 too, so I know it ain't easy.

excon

[Zazonker]

drmikefryer: Based on what you've said, I don't believe that your job could be correctly categorized as exempt. That being said, challenging the company on this point while you need the job, and probably the apartment could be pain that you don't want to deal with, and, there is never a guaranty that you'll win.

Excon is right that you should look for something else - at 66 that can be a long shot under better circumstances.

Since you indicate that your motivation is to see if you are eligible for termination, I'm assuming that this job and the apartment that goes with it is all that is keeping you from being homeless. While it is illegal for them to terminate you in retaliation, that won't stop the termination. The fact that you might win a settlement 5 years down the road really isn't worth much if those 5 years are spent on the streets.

So, my recommendation is that you keep accurate daily time records - all of your regular time plus whenever you are called. If you are terminated or manage to find something better, you could then file for unpaid overtime. Depending on the state you are in, there should be some penalties coming with that. Contact a local employment lawyer (specializing on the employee side) to discuss this so he is ready to file quickly if you are terminated.