Advice sought on handling crappy employmer situation
Jan 11th 2010, 7:46 pm
#46
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Re: Advice sought on handling crappy employmer situation
it's about hours worked, not days worked and if your in a position where you are managing people and their schedules your going to be considered management, very hard to get out of the exemption then.
Jan 11th 2010, 8:02 pm
#47
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Re: Advice sought on handling crappy employmer situation
"Mere supervision" is not sufficient. In addition, the supervisory employee must have "management" as the "primary duty" of the job. The FLSA Regulations contain a list of typical management duties. These include (in addition to supervision):
* interviewing, selecting, and training employees;
* setting rates of pay and hours of work;
* maintaining production or sales records (beyond the merely clerical);
* appraising productivity; handling employee grievances or complaints, or disciplining employees;
* determining work techniques;
* planning the work;
* apportioning work among employees;
* determining the types of equipment to be used in performing work, or materials needed;
* planning budgets for work;
* monitoring work for legal or regulatory compliance;
* providing for safety and security of the workplace.
Determining whether an employee has management as the primary duty of the position requires case-by-case evaluation. A "rule of thumb" is to determine if the employee is "in charge" of a department or subdivision of the enterprise (such as a shift). One handy clue might be to ask who a telephone inquiry would be directed to if the called asked for "the boss." Typically, only one employee is "in charge" at any particular time. Thus, for example, if a "sergeant" and a "lieutenant" are each at work at the same time (in the same unit or subunit of the organization), only the lieutenant is "in charge" during that time.
* interviewing, selecting, and training employees;
* setting rates of pay and hours of work;
* maintaining production or sales records (beyond the merely clerical);
* appraising productivity; handling employee grievances or complaints, or disciplining employees;
* determining work techniques;
* planning the work;
* apportioning work among employees;
* determining the types of equipment to be used in performing work, or materials needed;
* planning budgets for work;
* monitoring work for legal or regulatory compliance;
* providing for safety and security of the workplace.
Determining whether an employee has management as the primary duty of the position requires case-by-case evaluation. A "rule of thumb" is to determine if the employee is "in charge" of a department or subdivision of the enterprise (such as a shift). One handy clue might be to ask who a telephone inquiry would be directed to if the called asked for "the boss." Typically, only one employee is "in charge" at any particular time. Thus, for example, if a "sergeant" and a "lieutenant" are each at work at the same time (in the same unit or subunit of the organization), only the lieutenant is "in charge" during that time.
Many, many companies are oblivious to this requirement; it has been tightened up in the past several years and many managers are not aware of it. In California, btw, you can't make an IT person exempt unless you pay them about $92k - one of many tests. Outside of CA, the limit is more like $57k (this is a specific requirement for IT (from the link posted previously - "Section 13(a)(17) of the FLSA provides that certain computer professionals paid at least $27.63 per hour are exempt from the overtime provisions of the FLSA" - just an example).
Jan 11th 2010, 9:00 pm
#48
Joined: Apr 2002
Posts: 35,082
Re: Advice sought on handling crappy employmer situation
tonrob, it's starting to sound like this could be well worth a consultation with an employment lawyer, preferably one who has done work with her industry.
It's got to be worth a relatively small investment to make sure she gets it right...
Jan 11th 2010, 9:48 pm
#49
WTF?
Joined: Aug 2003
Location: Homeostasis
Posts: 79,367
Re: Advice sought on handling crappy employmer situation
Just because they fire her doesn't mean that she'll automatically get unemployment. Many employers dispute unemployment claims and win.
Jan 11th 2010, 10:50 pm
#50
BE Site Lead
Joined: Aug 2004
Location: MA, USA
Posts: 92,170
Re: Advice sought on handling crappy employmer situation
As someone who has recently gone through this process (trying to designate an employee as exempt - I simply wanted to avoid dealing with timesheets, approvals, etc), I can tell you that if the company is serious about avoiding a potential lawsuit, they need to be careful about defining someone as 'exempt' without very good reason. Check out this website. Extract:
Many, many companies are oblivious to this requirement; it has been tightened up in the past several years and many managers are not aware of it. In California, btw, you can't make an IT person exempt unless you pay them about $92k - one of many tests. Outside of CA, the limit is more like $57k (this is a specific requirement for IT (from the link posted previously - "Section 13(a)(17) of the FLSA provides that certain computer professionals paid at least $27.63 per hour are exempt from the overtime provisions of the FLSA" - just an example).
"Mere supervision" is not sufficient. In addition, the supervisory employee must have "management" as the "primary duty" of the job. The FLSA Regulations contain a list of typical management duties. These include (in addition to supervision):
* interviewing, selecting, and training employees;
* setting rates of pay and hours of work;
* maintaining production or sales records (beyond the merely clerical);
* appraising productivity; handling employee grievances or complaints, or disciplining employees;
* determining work techniques;
* planning the work;
* apportioning work among employees;
* determining the types of equipment to be used in performing work, or materials needed;
* planning budgets for work;
* monitoring work for legal or regulatory compliance;
* providing for safety and security of the workplace.
Determining whether an employee has management as the primary duty of the position requires case-by-case evaluation. A "rule of thumb" is to determine if the employee is "in charge" of a department or subdivision of the enterprise (such as a shift). One handy clue might be to ask who a telephone inquiry would be directed to if the called asked for "the boss." Typically, only one employee is "in charge" at any particular time. Thus, for example, if a "sergeant" and a "lieutenant" are each at work at the same time (in the same unit or subunit of the organization), only the lieutenant is "in charge" during that time.
* interviewing, selecting, and training employees;
* setting rates of pay and hours of work;
* maintaining production or sales records (beyond the merely clerical);
* appraising productivity; handling employee grievances or complaints, or disciplining employees;
* determining work techniques;
* planning the work;
* apportioning work among employees;
* determining the types of equipment to be used in performing work, or materials needed;
* planning budgets for work;
* monitoring work for legal or regulatory compliance;
* providing for safety and security of the workplace.
Determining whether an employee has management as the primary duty of the position requires case-by-case evaluation. A "rule of thumb" is to determine if the employee is "in charge" of a department or subdivision of the enterprise (such as a shift). One handy clue might be to ask who a telephone inquiry would be directed to if the called asked for "the boss." Typically, only one employee is "in charge" at any particular time. Thus, for example, if a "sergeant" and a "lieutenant" are each at work at the same time (in the same unit or subunit of the organization), only the lieutenant is "in charge" during that time.
Many, many companies are oblivious to this requirement; it has been tightened up in the past several years and many managers are not aware of it. In California, btw, you can't make an IT person exempt unless you pay them about $92k - one of many tests. Outside of CA, the limit is more like $57k (this is a specific requirement for IT (from the link posted previously - "Section 13(a)(17) of the FLSA provides that certain computer professionals paid at least $27.63 per hour are exempt from the overtime provisions of the FLSA" - just an example).
Your looking at a IT job....this ain't one though.
Some one could be manager of a store but have a sub manager to run day/night shift, have someone manage stock and someone running front of the store. Only the store manager would control wage/salary and over all schedules, but those other managers might be involved in interviews, they'd control who on their shift would do what and how.
It's very easy outside of IT to be a manager.
Jan 11th 2010, 10:58 pm
#51
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Posts: 13,111
Re: Advice sought on handling crappy employmer situation
Your looking at a IT job....this ain't one though.
Some one could be manager of a store but have a sub manager to run day/night shift, have someone manage stock and someone running front of the store. Only the store manager would control wage/salary and over all schedules, but those other managers might be involved in interviews, they'd control who on their shift would do what and how.
It's very easy outside of IT to be a manager.
Some one could be manager of a store but have a sub manager to run day/night shift, have someone manage stock and someone running front of the store. Only the store manager would control wage/salary and over all schedules, but those other managers might be involved in interviews, they'd control who on their shift would do what and how.
It's very easy outside of IT to be a manager.
Jan 11th 2010, 11:13 pm
#52
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Re: Advice sought on handling crappy employmer situation
Now, this was pretty limited unemployment - I was surprised by how low it was - and I had to wait 2 or 4 weeks before I could start claiming ... but still, I did get it seemingly without any reference to 'how' I became unemployed. Is this a CA thing? I started a new job after 6 weeks so the whole thing is a bit of a blur ...
Jan 11th 2010, 11:14 pm
#53
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Joined: Aug 2004
Location: MA, USA
Posts: 92,170
Re: Advice sought on handling crappy employmer situation
Being management also can work out in your favour with regards to other benefits and protection than just an hourly wage slave...which ain't that much more, but more none the less.
Jan 11th 2010, 11:17 pm
#54
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Location: MA, USA
Posts: 92,170
Re: Advice sought on handling crappy employmer situation
I'm confused ... The one time I claimed unemployment, the unemployment was from the State, funded by CA taxes; I don't recall there being an issue of 'how' or 'why' I became unemployed. I actually quit because after a merger, they wanted me to commute to a location that I did not like; but there was a job available to me that I declined.
Now, this was pretty limited unemployment - I was surprised by how low it was - and I had to wait 2 or 4 weeks before I could start claiming ... but still, I did get it seemingly without any reference to 'how' I became unemployed. Is this a CA thing? I started a new job after 6 weeks so the whole thing is a bit of a blur ...
Now, this was pretty limited unemployment - I was surprised by how low it was - and I had to wait 2 or 4 weeks before I could start claiming ... but still, I did get it seemingly without any reference to 'how' I became unemployed. Is this a CA thing? I started a new job after 6 weeks so the whole thing is a bit of a blur ...
Getting fired usually means you aren't eligible for unemployment within x amount of months, which is why you want to get laid off or the firing because of a change in job duties. Companies, small ones at least like to fight because it means their unemployment insurance would go up.
Jan 11th 2010, 11:21 pm
#55
Septic Sprout
Thread Starter
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Posts: 7,993
Re: Advice sought on handling crappy employmer situation
Getting fired usually means you aren't eligible for unemployment within x amount of months, which is why you want to get laid off or the firing because of a change in job duties. Companies, small ones at least like to fight because it means their unemployment insurance would go up.
Anyway - she managed to get unemployment straight away (from CT) and this went on for about 4 months until she landed her current job.
Jan 11th 2010, 11:32 pm
#56
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Re: Advice sought on handling crappy employmer situation
It's a CA thing...most places the unemployment is a work insurance thing and nothing really to do with the state other than them dolling it out.
Getting fired usually means you aren't eligible for unemployment within x amount of months, which is why you want to get laid off or the firing because of a change in job duties. Companies, small ones at least like to fight because it means their unemployment insurance would go up.
Getting fired usually means you aren't eligible for unemployment within x amount of months, which is why you want to get laid off or the firing because of a change in job duties. Companies, small ones at least like to fight because it means their unemployment insurance would go up.
'...through no fault of their own ...'. Hmmm ... so maybe in my case, I was able to claim the job was eliminated due to the merger.
Jan 11th 2010, 11:38 pm
#57
WTF?
Joined: Aug 2003
Location: Homeostasis
Posts: 79,367
Re: Advice sought on handling crappy employmer situation
I'm confused ... The one time I claimed unemployment, the unemployment was from the State, funded by CA taxes; I don't recall there being an issue of 'how' or 'why' I became unemployed. I actually quit because after a merger, they wanted me to commute to a location that I did not like; but there was a job available to me that I declined.
Now, this was pretty limited unemployment - I was surprised by how low it was - and I had to wait 2 or 4 weeks before I could start claiming ... but still, I did get it seemingly without any reference to 'how' I became unemployed. Is this a CA thing? I started a new job after 6 weeks so the whole thing is a bit of a blur ...
Now, this was pretty limited unemployment - I was surprised by how low it was - and I had to wait 2 or 4 weeks before I could start claiming ... but still, I did get it seemingly without any reference to 'how' I became unemployed. Is this a CA thing? I started a new job after 6 weeks so the whole thing is a bit of a blur ...
Jan 11th 2010, 11:59 pm
#58
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Re: Advice sought on handling crappy employmer situation
Maybe you don't recall any issue because your employer didn't create one for you? Or maybe it's a matter of different states different laws. I don't know. What I do know is that (here) - (1) there are some circumstances in which a person is not eligible for unemployment and (2) the state verifies the conditions of the termination of employment (as reported by the claimant) with the employer.
Jan 12th 2010, 12:17 am
#59
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Posts: 92,170
Re: Advice sought on handling crappy employmer situation
Well I guess I'm really confused ... this CA government page says 'The Unemployment Insurance Program, commonly referred to as UI, provides weekly unemployment insurance payments for workers who lose their job through no fault of their own. The UI program is funded by employers who pay taxes on wages paid to employees'
'...through no fault of their own ...'. Hmmm ... so maybe in my case, I was able to claim the job was eliminated due to the merger.
'...through no fault of their own ...'. Hmmm ... so maybe in my case, I was able to claim the job was eliminated due to the merger.
Also, a merger generally results in redundant people, so that's probably how you were seen and the employers couldn't be bothered or didn't worry about contesting your claim as it is fairly valid.
