September 29th, 2015

Let’s Talk with Kalola: Exploiting Exempt Status



Seek advice for your dilemma. Write to Kalola.

Dear Kalola:

I have been an executive assistant for a very demanding owner of a fast paced business. I wear different hats, from scheduler, recruiter, travel coordinator, IT supervisor, and personal assistant to punching bag. I’ve supported this person for twelve years, the company is small. FMLA (Family Medical Leave Act) and other state statutes protecting employees do not apply to them.

I am salaried, work over 12 to 20 hours of unpaid overtime a week, which I’m told is part of my position. In all these years, I have been rewarded with two comp days. If I have to attend a doctor’s appointment, I am required to make up the time or use 1/2 day of my vacation time.

I have explained to my boss that exempt means exempt from overtime, but she classifies me as an exempt administrative employee. I try to give her information from the Department of Labor but she tells me she doesn’t need my input.

She micro-manages everything I do, and makes all the decisions. I use to supervise the file clerks, and receptionist but she eliminated those positions and I also fill in for those positions. I work 24/7 having to respond to email and emergencies on my vacation days. I get texts at 6:30 am asking to change flights and that they be in first class.

You ask why I have stayed so long? My age, my illness, my health has deteriorated due to the stress, I’m trying to get my daughter (I’m a single parent) her father passed away and I just need to get her to college. My employer knows my limitations so she feels she can insult me, humiliate me, do as she pleases and I am not going to leave. I know she is forcing me into quitting so that I don’t collect unemployment etc., which would be nothing.

My situation is comparable to domestic abuse, as she is getting too comfortable and has gone as far as grabbed with force files out of my hands, shoved back a file folder as I tried to place on her desk, which was for her own benefit, not mine.

There is no HR department, she owns and micro manages everything. I know she has disqualified me so many times from an exempt to a non-exempt employee, but I know if I seek help from the labor department, she will fire me. She will hire the best of attorneys money can buy, I’ve witnessed it before.

So many administrative assistants, executive assistants are abused each day. It doesn’t have to be physical abuse but the mental anguish these bosses put their assistants through is deplorable. I can go on and on, because there are so many instances, working 24 hours without a break or sleep, being yelled at for going home to take a shower and coming back. Exempt employees should not have to work 60-hour weeks and still be
treated poorly. This category is used to abuse employees into working without being compensated.

I am currently scheduling an appointment with a therapist because sometimes I feel like I’m going to have a nervous breakdown.

Abused and Exploited Exempt Employee

Dear Abused and Exploited Exempt Employee:

What is an exempt employee? According to the U.S. Department of Labor, Wage and Hour Division, Fact Sheet #17a, the Fair Labor Standards Act (FLSA) provides an exemption or exclusion from minimum wage and overtime for employees employed as bona fide executive, administrative, professional, and outside sales employees. Additionally, each state may have their own wage and hour laws which may have more requirements than the federal law.

There are loopholes in the current law that allows the employer to exploit exempt employees. For example, according to the Fair Labors Standards Act, an exempt employee (except outside sales employees) must be compensated on a salary basis of not less than $455 a week. An employer could pay an exempt employee the minimum salary ($455 a week x 52 weeks = $23,660/year before taxes) while requiring the employee to work overtime for which the employee does not receive compensation due to their exempt employee status.

A full-time, non-exempt employee, generally, works a 40-hour week. If required to work overtime the non-exempt employee is usually compensated. The federal minimum wage is $7.25 an hour. California’s minimum wage for the year 2015 is $9.00 an hour and will go up to $10.00 an hour on January 1, 2016. Some California cities pay a higher minimum wage per hour. Minimum wage and overtime pay varies from state to state. The U.S. Dept. of Labor, Wage and Hour Division lists the minimum wage for each state at their website (note that overtime is called: “premium overtime pay” or “premium pay”): http://www.dol.gov/whd/minwage/america.htm

Try to get the employer to clarify in writing whether you are an “exempt” employee or a “non-exempt” employee. Have you called the State of California, Dept. of Industrial Relations, Division of Labor Standards Enforcement (DSLE) about your work dilemma? Stick to the most important facts of your matter as it relates to California’s Labor Code when talking to the Labor Commissioner about your issues. The contact number for the Labor Commissioner can be found at: http://www.dir.ca.gov/dlse/DistrictOffices.htm.

Should the employer/your boss retaliate because you have contacted the Labor Commissioner, talk to the Labor Commissioner about what happened to you as a result of contacting the Labor Commissioner’s office.

At the small business where you work, positions were eliminated. With fewer personnel, you have had to do additional work. There is no need for the employer to hire replacements to fill the eliminated positions as long as there are other workers available to do the work. The bully will continue to test just how far she can go with you. This is not about confronting the bully with the hopes that things will get better. You have tried to reason with her. The bully has been exhibiting bad behavior for far too long and is unlikely to change. You have quoted state and federal laws to her and she doesn’t care. If anything, the bully appears to have gotten meaner and the office staff is now leaner.

No worker is Wonder Woman or Superman. We are not superhuman beings. Don’t allow the job to kill you. You are one person, and can only be expected to do the work that one person can do. Know your limits. Because the employer has gone back and forth in calling you an exempt employee to calling you a non-exempt employee you may want to consider setting boundaries beginning with working regular work hours and taking a minimum 30-minute lunch the next time the employer calls you a non-exempt employee. For example: Don’t arrive to work early and don’t leave late. Screen all your telephone calls when you are away from work. Don’t answer your home telephone or cell phone before work or after work, let the call go to voice mail. The boss may have a “Rumpelstiltskin” fit when you don’t pick up her calls or respond to her text messages. She may have a screaming fit when you get to work but you will also send her the message that you aren’t on call to do her bidding. Yes, you could be fired but that might not be a bad thing. You might leave a message on your land line and cell phones such as: “If this is a life or death emergency, please dial 9-1-1.” Of course, these are only suggestions. (“Rumpelstiltskin” is a character from a Grimm’s fairy tale of the same name.)

If you become unemployed, your employer may fight your application for unemployment benefits. In your particular situation, obtaining unemployment benefits could be a battle. Stay focused on your goal. It is important for you to know that In California, if you lose in the first round, you can appeal the decision. If you lose your appeal which is called a “first-level appeal”, you will have an opportunity to appeal that decision which is called a “second-level appeal”. For more information, go to the California Employment Development Department (EDD) website: http://www.edd.ca.gov/Unemployment/First_Level_Appeal.htm. For readers in other states, please see your state’s department of employment website for information on filing for unemployment benefits. Your state may or may not have an appeal process if you are denied unemployment. For those workers that may be unemployed, do explore the free services that your state department of employment offers.

It is not easy being a single parent and sole support for a child. You mentioned that your daughter’s father passed away. If your child is under the age of 18, she may qualify for Social Security “Benefits for Children” providing her father paid into the Social Security system. For a child who has no disability, Social Security benefits end at age 18. However, if the child is 18 and still in high school the benefits end at age 19 or upon high school graduation whichever comes first. Go to the Social Security website, Benefits for Children website to learn more: http://www.socialsecurity.gov/pubs/EN-05-10085.pdf. (if the web link doesn’t take you to the website, copy and paste the link into the address bar of your internet browser.)

After high school, a student could stay at home and attend their local public community college for two years, and then transfer to a public four-year college or university which will help save money. A student interested in working while attending college could go to the Student Employment Office at their campus and check for any on-campus or off-campus jobs. The advantage to working part-time in the student’s field of study is that the student will have work experience and job references to put on their résumé. It is highly recommended that a prospective student fill out the Free Application for Federal Student Aid (FAFSA) form and state financial aid form. Note: Deadlines vary from state to state. Go to the FAFSA website to learn more: https://fafsa.ed.gov/index.htm.

As much as parents want to see their children go to college, the child makes the decision whether they want to further their education or not. Yes, it helps if a parent can make it financially easier for the child to attend college but not all parents and families can afford to send their children to college. There are many students who attend school and work part-time or, alternatively, attend school part-time and work full-time. Some delay their education while others are simply not in a position to attend college due to family and/or financial obligations.

You are in a demanding, stressful job. Your employer is the bully. You get no respect and no extra money for the long hours you put into the job. You get little satisfaction from the work that you do. Due to the psychological abuse, you feel as though you are the bully’s punching bag. No worker should have to work in an abusive work environment.

Have you looked for another job? To motivate you, I would strongly suggest you start reading personal finance articles and begin planning for your future retirement. It is never too early to begin planning. Have you been able to put money aside for your golden years? Do you have an emergency fund should you lose your job or other emergency occurs? If you receive a Social Security statement, take a look at it the benefit at age 62 and at full retirement age. Can you live on that amount? If you can’t and you have no savings then this is one of the reasons why you can’t afford to stay in your current job. The #1 reason—Your health is deteriorating from the long work hours and the stress and anxiety you are experiencing at work. If you are unable to do your job, the employer will terminate your employment.

What you are experiencing at work is not going to stop until you walk out the door or your employer let’s you go. According to your letter, the job is already affecting your health and well being. You deserve better. Consider that what is happening to you now could also be affecting your child.

You mention that you are planning to see a mental health professional as you are feeling like you are about to have a nervous breakdown. Please also see your primary physician for a health evaluation. Have you been seeing your doctor for your annual checkup or have you skipped the exam because of the fear of what the boss might do if you do take time off work?

Twelve years is a very long time to be working in a psychologically abusive work environment. Your boss hasn’t fired you yet because she knows how valuable a worker you are. One day, you will ask yourself why you stayed on this job so long. One day, you will regret all the time you spent working overtime for free. You can never get back the time that you have lost.

If you are determined, you will find another job. Sometimes it isn’t about the money. Your good health is everything. You are more important than the job. Please look at the bigger picture. How much more can your psyche take? How much more before the job takes your life? I want you to be able to see your child grow up, graduate from high school and college, get her first job after college, fall in love, get married, etc. Don’t ignore the red flags. Remember, your #1 job is Mom … you can’t be replaced.

“Ability is what you’re capable of doing. Motivation determines what you do. Attitude determines how well you do it.” … Raymond Chandler, American Writer (1888-1959)

“Men and women want to do a good job, and if they are provided the proper environment, they will do so.” … William Hewlett, American Businessman (1913-2001)

Sincerely,
Kalola

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This entry was posted on Tuesday, September 29th, 2015 at 8:08 am and is filed under Let's Talk with Kalola, WBI Education. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.



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