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Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20127
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I have been working in academia as an "assistant" faculty

Customer Question

I have been working in academia as an "assistant" for one faculty member for more than five years. Since I have began working responsibilities have increased along with the level at which I manage his time, efforts, and taking ownership of all of his lower level responsibilities. As a result my efforts exceed 40 hours every week for the last 7 years (at least), but because of our departmental policy to get overtime pre-approved I am either not achieving my 150% worth of effort (faculty disapproval), but no administrators make faculty responsible for being decisive (aka managing) the level and amount of tasks given to a nonexempt employee. Not to mention taking a personal hit and spending my time working over without any increase in compensation or title (preferably to exempt) or overtime. Every year I am in a battle with HR about the level of inequity in my responsibilities versus several other employees who are exempt, have way less commitments, scope, and responsibility. How do I handle this inequity in the workplace?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.
Hello,Thank you for the information and your question. However, I am a bit confused about what result you want. On the one hand you state you are nonexempt and working overtime, but apparently not being paid for that and on the other hand you want to be an exempt employee (who by the way gets paid the same whether they work 30 or 80 hours a week). Can you tell me what you want to have happen? Are you saying you should be an exempt employee or are you just wanting your overtime pay?
Customer: replied 1 year ago.
I am saying that a change needs to occur and I only see two options, the ones I indicated. Because I have been working overtime and my boss has not "elected" to pay me for it nor has he chosen to evaluate my time relative to my increased responsibiity duties. Actually as his duties increase so do mine but my time is not being evaluated accordingly, so the only way I can be compensated is by being promoted to an exempt position- does that clarify?
Expert:  Marsha411JD replied 1 year ago.
Hello again and thank you for your response. To clarify the law on this issue, whether an employer "approves" overtime or not for their non-exempt employees, they must nonetheless pay it to those who actually worked that time. In other words, an employer doesn't have the legal option to say to a non-exempt employee that they will not get paid for their overtime simply because it wasn't approved. Under both the Federal Fair Labor Standards Act and all state laws (you don't state what State you work in but all states must, at the very least follow the FLSA), a non-exempt employee that works over 40 hours in a workweek, must be paid time and a half. There are no exceptions for when an employer has not pre-approved the time. Therefore, the issue is actually fairly simple. If they refuse to pay you for the overtime you have worked, you have the right to file a wage claim with the state DOL. As for forcing them to make you exempt, the law does not mandate that any employee be identified as exempt. In fact, it works the other way around. Only certain employees can be identified as exempt. The reason is because the laws favor non-exempt employees. Thus it only goes one way. An employer cannot make someone exempt who really should be non-exempt. As indicated in my initial response, there really are less rights to decent pay for exempt since employers can work them 24/7 without paying them overtime. So, from a legal standpoint, you cannot force your employer to make you exempt. And, they might not even be able to even if they wanted to because of the strict rules about who can be exempt. Assuming though that your position would qualify as exempt, since you can't force the employer to do that, it then becomes an administrative issue that you must work through your senior management and HR to try to resolve. Absent a written term contract or bargaining agreement, an employer always has the right to set and change the terms and conditions of employment, including duties, title, wages, benefits, etc. But again, the take away here is that if you are working overtime, you employer must pay you and if they don't you have a valid wage claim. That said, an employer can discipline employees who work overtime without getting pre-approval if that is an employer requirement. Please let me know if you need any clarification. I would be glad to assist you further if I can.
Expert:  Marsha411JD replied 1 year ago.
Hello again,
I wanted to touch base with you and make sure that you did not have any follow up questions for me from the legal answer I provided to you on the 1st. For some unknown reason, the Experts are not always getting replies or ratings (in the pop up box for this question, which is how we get credit (paid) for our work) that the customer thinks have gone through. In your case I received neither. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator.
In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed. You can bookmark my page at:
Thank you.