What to do when your ‘37.5-hour workweek’ runs a lot longer

Question:

I work as an entry-level insurance adjuster in a claims sweatshop. My boss hired me for a stated salary. He told me I’d have a 37.5-hour workweek, but also told me I couldn’t go home until I finished processing my assigned claims.

These claims take nine to 10 hours a day to process. I work straight through and don’t take any breaks. I even come in on vacation days to work and he repays me by handing me more claims.

He makes it nearly impossible to take time off, because whenever I fill out a leave slip, it becomes a grueling negotiation. I asked for a week off over Christmas and was told I could only take two days. He knows I have unused leave that expires if it’s not taken by the end of the year. When I asked him what happens to my unused leave, he grinned and impishly said, “You lose it.”

I have two children at home and the long hours worry me because I’m away from them way too much. I am searching for another job. Meanwhile, can you help?

Answer:

My first thought — have you been paid fairly? Although exempt employees work more than 40 hours for their salary, even if it means evening or weekend work, your job might not fit the exempt category. Thus, even if your supervisor pays you a weekly salary, he still owes you for any hours you work over eight in a day or 40 in a week.

Also, when employers hire employees for exempt jobs that take more than the average of 45 to 50 hours a week, they should let them know. Had you known what you were being offered, you might have declined.

Former employment attorney and human resources consultant Rick Birdsall assessed your job against the Fair Labor Standards Act categories that would exempt you from overtime pay. Birdsall suggests you send him your position description as he doubts that an entry-level adjuster fits the professional exemption. You can learn more about the professional, administrative, executive and other exemptions from the Alaska State Department of Labor website.

Also, says Birdsall, this exemption “requires a salary minimum that increases based on recent amendments to the FLSA regulations to $970 per week or $50,440 annually.” Birdsall notes that you may want to “pursue a civil action for back pay and overtime” and adds that you might receive liquidated or punitive damages if you can show that your employer’s conduct was “willful.” “If this employee sues and is the prevailing party,” says Birdsall, “she also receives attorney’s fees.”

“These leadership problems are all too common,” notes Birdsall. “Promoting supervisors without appropriate leadership and legal awareness training is litigation waiting to happen.”

The vacation story you report seems unfair. Employers can let employees know they can’t take vacation during peak times or when other employees have already bid for those vacation days. Your employer, however, appears to think it’s funny that your accrued leave expires even as he denies a leave request. What do I honestly think you should do? Redouble your efforts to find a better job and check with the Department of Labor to learn how they can help you.

© Dr. Lynne Curry is author of ”Beating the Workplace Bully” and ”Solutions” as well as owner of the management/HR consulting/training firm The Growth Company Inc. Follow her on Twitter @lynnecury10 or at http://www.bullywhisperer.com.

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