“Can a Manager qualify for Over Time even though I am Exempt?”

Last night I responded to a sent question that should receive special merit and mention because it was such a good one and a common abuse in employment law –

“Can a manager be paid overtime even if they’re considered an exempt employee?”

This question in detail would take up a 10 page blog filled with ambiguous terms and multiple cross references – but the situation really depends and is dependent on different factors.    

In simpler terms – if you have a manager title, work a lot of overtime, and don’t get paid for that overtime – can my BOSS get away with this? It’s a case by case scenario.

It depends on what classification of employment you fall into? – Hourly or manager – Exempt or non-exempt?

Just because you are have a Manger’s title does NOT mean you are an exempt employee and you May qualify for overtime pay under a misclassification of employment.

Key words are “May” and “Misclassification of Employment”

There have been cases even class action lawsuits against employers that have misclassified their employee’s as managers when in fact they are not managers, per se, just for pay.

The differences being a manager or are in the “Duties” performed not in the “Title” assigned when hired. Review your job description to determine if your duties are more of managerial responsibility or non-managerial, and if your duties are not managerial than yes you may be owned some overtime pay.   

What you actually do during working hours is what classifies you as exempt versus non-exempt or hourly versus manager.

If you suspect you may qualify for overtime pay but are exempt by title, there is a test to determine if you are a manager under duties or title.

California uses a quantitative asking whether more than 50% of employee’s duties are administrative, this favors the employee and is simple to prove and understand.

Under federal law the test is qualitative, taking into account factors such as the importance of the exempt duties to the job, the amount of time spent on them, the employee's freedom from direct supervision, and differences between the employee's pay and that of hourly workers. This federal test favors employers and is ambiguous and lengthy and an uphill battle.   

So Yes and No, “Can a manager be paid overtime even if they’re considered an exempt employee?” Best advice thought; Get a good lawyer to help you figure this out. At the Arroyo Law Firm we handle employment questions such as these and make sure that your best interests are covered.

Give us a call at 714-566-4112 or email us at Arroyofirm@gmail.com for any questions on employment law, Bankruptcy law, and DUI defense.

“The Internet or your Job!”

As far I know there are no formal laws or statutes prohibiting the use of the internet for non-work related activities. There are no statutes employers can use directly to fire you and there is no public policy against it protecting you from being fired. It would be too difficult to explain how one person out of all the rest is terminated for directly using the Internet during working hours when Internet use is wide spread in the work place during working hours. 

I’ve heard of companies disabling there office gateway to restrict employees from surfing the internet during working hours to increase employee productivity, but with so many WEB based work applications and software this has turn out to be impossible. 

They are multiple access point to the internet that an employee doesn’t necessarily have to use the business internet access point to get access to the Internet. An employee can simply be using a smartphone or texting on company time from their own devices to be equally accused.

“Surveys Says,” the average employee spends between one and two hours each day using the Internet for personal reasons. The reasoning that many give for using the Internet at work ranges from a faster connection at work to accessing the Internet as a result of boredom.

So a question messaged to me via Facebook last week was, “Can I get fired for being on the Internet on working hours?”

I haven’t seen or heard of cases involving wrongful termination directly related to using internet while working. What I have seen are that companies are attaching violations found in there “Company Handbook.”

 A “Company Handbook” is usually the most ignored material given to a hired employee that gives the rules and regulations of what can be used against you in a termination or even what can be used against the company in an unlawful termination lawsuit. Trust me when I say, keep that book handy.

The “Company Handbook” has 101 catch 22’s, meaning that like a law book, some terms are ambiguous, lengthy, and not in laymen terms.  Rule and regulations found in the “Company Handbook” can tie certain non-protected employment actions to a related legal action that can result in termination with good cause.

For example, if you’re suffering the net for Christmas shopping or you’re on Facebook hosting 500 friends publishing a quote now and then, you can admit to being on the net during working hours or for long periods of time.

Scenario: You’re issued a company phone with Internet access and they say use this and then you receive a business issued laptop for work and you begin to get the Internet itch and you pop open some screens and you get your internet mojo going.  Then as weeks pass and this internet itch becomes habitual, HR calls you into their office and terminates you for a catch 22 from the “Company Handbook” that’s holding up the backend of your sofa back at your apartment.

HR doesn’t bring up your Internet use while at work use directly, but makes a slight inference to it, and terminates you for an indirect violation to the company’s rules and regulations ----- It’s a good cause termination. Ouch!  

Companies will use NOT terminate you directly for using the Internet while at work, because in reality, you’re not the only one, and this is called singling you out.  “Singling you out” for one thing, when it is a common office practice, may result in a lawsuit against the company for harassment. So as long as everyone in the office has access to the Internet and is using the Internet, you cannot be fired for using the Internet directly, because everyone is doing it.

So the question again, “Can I get fired for being on the internet on working hours?” the answer is not directly, but like I said, in my experience a company will reach into the “Company Handbook” and attach a company violation to it and fire you for that on good cause.

Other issues can arise while using the internet at work. Current US laws only prohibit employers for intercepting email while it is in transit, not from reading it prior to sending or once it has been received. The law also prohibits the gathering of personal information such as bank account and credit card information.

Though legal issues have arisen from workplace surveillance, most final rulings favor employers because they have a right to protect their business, which is viewed as their property.

“So Yes and No, you can be fired for being on the Internet at work.” Best advice thought; get a good lawyer to help you figure this out. At the Arroyo Law Firm we handle employment questions such as these and make sure that your best interests are covered.

Give us a call at 714-566-4112 or email us at info@arroyofirm.com for any questions on employment law, Bankruptcy law, and DUI defense.