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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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I am a staff accountant, which is a salary position. past 9

Customer Question

I am a staff accountant, which is a salary position. For the past 9 months because of the new controller I have been working an average of 10 plus hours per day and some weeks 6-7 days a week. I gave my letter of resignation back in October but was asked to stay through the end of year. At the end of year I was asked to stay through March so I would receive my bonus payout. I agreed because of the bonus but I was also told that the vacation I accrued at the end of year which was 120 hours I couldn't lose it due to the Colorado Labor Law Use it or Lose it. They offered me a new position as Accounting Coordinator III at a lower wage, making less than I made when I had the same position 5 years ago. After I resigned they wanted to know how many hours I worked within a certain time frame and the Controller had me deduct 1 hour a day for lunch even when I didn't take a lunch. which was a rare thing since I always ate while I was working.
No one else works the hours I do except for the General Manager and Controller. All the other salary employee work no more than 9 hours a day with a lunch.
Should I be getting overtime after a certain number of hours worked and can they take my vacation accrual from me which will be 160 hours by March 31st.
Appreciate Your Help.
Submitted: 9 months ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 9 months ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

I'm a bit confused--if your position was salaried, then why is it that your employer was having you deduct an hour for lunch? Would that not mean you were being paid hourly? I very much look forward to helping you on this matter.

Customer: replied 9 months ago.
She didn't won't the HR Manager and the General Manager to know exactly how many hours I was really working because he(GM) had mentioned it to the HR that I was working so many hours and that I looked exhaused.
Expert:  Patrick, Esq. replied 9 months ago.

Thank you.

Generally, speaking, accountants will qualify for the "learned professional" exemption from overtime. This exemption allows the employer to pay a flat rate salary without regard to the number of hours actually worked with no overtime.

However, in order for the exemption to apply, the employer must always pay the same flat rate salary--they cannot make adjustments based on the number of hours worked in a day or otherwise treat a salaried employee as if they were hourly. The fact you were asked to subtract hours for lunch would allow you to argue that your employer forfeited the exemption, thus entitling you to overtime.

Regarding your second question, no law requires employers to offer vacation and so the law affords employers a lot of discretion with regard to how and when it can be earned, used, and paid upon separation of employment. In general, employers are only required to pay accrued vacation if there is an agreement so providing. Here, you indicate that you would not lose your vacation. So, you would be able to argue that you have an agreement requiring the payment of your vacation and you could pursue compensation for such hours on a breach of contract theory.

Both of these claims can be pursued by filing a wage claim with the CO Dept. of Labor here. However, if the amount you are seeking exceeds $7,500, you will need to file a lawsuit in civil court, as the Dept. of Labor cannot recover more than that amount for you. To pursue a lawsuit, you will need an employment attorney. You can locate such an attorney here. Most will be willing to assist you on a contingency fee basis, meaning you pay nothing up front, just a percentage of whatever your recover (typically 1/3).

Expert:  Patrick, Esq. replied 9 months ago.

Were you able to view my response?

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