A newly-hired manager is telling salaried employees that they have to work 45 hours a week, take designated lunch breaks and set daily hours. If employees miss time, they have to make it up. Does this make all employees non-exempt?
In the past, being salaried/exempt meant employees had flexibility. As long as they put in over 40 hours per week, the timing of their daily arrivals and departures didn't matter. Aren't salaried employees paid for the job, rather the hours? Employees are coming to me, an HR manager, with their concerns, but the manager won't budge. What should I do?
Counting the Hours
First thing's first, your new manager may be a horrible manager, but she's not acting illegally. Exemption has to do with pay, so she's within her right to ask employees to come and go according to a firm schedule.
The Fair Labor Standards act details who is exempt and who is non-exempt. According to that law, in order to be exempt, an employee must earn a minimum salary of $455 per week (unless your state law requires a higher amount), and meet a "duties test." While this duties test is complex and often the subject of lawsuits, there are a couple of quick guidelines that can help send you down the right path.
If an employee does any of the following, she could meet the duties test:
- Manages two or more people and performs mostly managerial work.
- Manages a function.
- Is an educated professional who works independently.
- Is an "Outside Salesperson."
Beyond understanding which employees are exempt, it's also important to grasp from what they are exempt. The answer? Overtime pay, and only that. Exempt employees are not eligible for extra income depending on how much they work, and must earn the same amount every pay period. In other words, if Jane, an exempt worker, puts in 30 hours this week and 60 hours the next week, she still gets the exact same paycheck.
Breaking Down the Law
What the law doesn't address is how you manage an exempt employee. Therefore, your manager is legally correct in that she can require employees to work set hours, take breaks at certain times and make up any time away from the office.
In some businesses this approach makes sense. A grocery store manager is (generally) an exempt employee, but you always need a manager on duty, so someone in her role should work specific hours and eat lunch at a specific time. Other companies or roles may allow for greater flexibility, but that has nothing to do with exemption in the legal sense.
Ultimately, the manager gets to choose how she manages but you, as the HR manager, you can advise her. Sit her down and say: "Several employees have come to me and complained about the new rules you've created regarding attendance and breaks. Can you tell me what problem you are trying to solve?"
Bringing the issue up in the form of this question works well because it leaves open the possibility that there really is a problem. For example, perhaps the last manager's lax attitude hurt performance and the department really needed some strict rules to get it back on track. But, it's also quite possible that the manager is just using the same tactics that have been used on her elsewhere in the past. If that's the case, enlighten her and say: "We've always let our professional staff have some flexibility, as long as they get their work done. We've found it to be extremely helpful for employee engagement."
If the manager refuses to budge or has good reasons for managing this way, then you can only continue to coach her and make suggestions. You can also escalate the issue to her boss, but ultimately, she isn't breaking any laws.
Suzanne Lucas, Evil HR Lady