#1  
Unread 04-28-2004, 06:56 AM
HCA
 
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Default Are union members still exempt/non-exempt?

We have an employee who clearly falls in the exempt status (no question on his supervisory level). A department head denied his request for 1.5 hours of overtime because he is exempt. We now have a grievance from the bargaining unit saying that he is a union member and is entitled to be paid under the union contract regardless of his status. "The union's position is that whether he is exempt or non-exempt under FLSA is irrelevant. The FLSA sets minimum criteria for overtime and wages for employers, and does not prevent parties from entering into a collective bargaining agreement that allows overtime for exempt staff."
IS THIS TRUE?? The exempt employee is a member of the bargaining unit, but we don't necessarily believe he should be (we fought that battle before and asked them to place him in a difference unit because he supervises other members of the bargaining unit - they didn't). We have always treated him as an exempt employee and the union agreement doesn't differential between employees and supervisors.
Do we have to pay him the 1.5 hours of overtime??

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  #2  
Unread 04-28-2004, 07:07 AM
Hunter1
 
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Default RE: Are union members still exempt/non-exempt?

If the position is listed as a covered position in the recognition clause and there aren't any special arrangements for overtime for the position, yes, I believe you have to pay him time and one-half. The contract most likely defines overtime and it wouldn't be any different for this individual. They will win the ensuing grievance.
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  #3  
Unread 04-28-2004, 11:17 AM
Hatchetman
 
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Default RE: Are union members still exempt/non-exempt?

[font size="1" color="#FF0000"]LAST EDITED ON 04-28-04 AT 05:26PM (CST)[/font][br][br]Is this guy the only exmept in the contract?

What has the practice, under the contract, been for represented exempts in regard to paying them overtime?

Is there a "management's rights" article and what does that say?

Being a represented emplyee or not is not a function in deciding whether overtime is payble to an exempt. If your contract calls for it, then you pay it.

FLSA/DOL Opinion doesn't prohibit an employer from paying additional compensation to an exempt who works more hours than the weekly salary is intended to cover -- in short, the employer is not prohibited from paying overtime, even at an hourly rate at time-and-a-half; it won't jeopardize the exempt status as long as such payments are not a rouse to get around the prohibitions against improper docking.

Regarding his being represented by the contract, if he is a supervisor is he involved in ruling on contract provisions in a grievance? In other words, does he sueprvisoe employees who are also covered by this contract in the same "bargaining unit" and is he deciding grievances on the contract language (e.g., whether the company violated a certain provison or not in taking an action against an employee)?
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  #4  
Unread 04-28-2004, 01:09 PM
HCA
 
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Default RE: Are union members still exempt/non-exempt?

[font size="1" color="#FF0000"]LAST EDITED ON 04-28-04 AT 07:13PM (CST)[/font][br][br]What is there is no recognition clause or anything else that differentiates between positions?

I just found the recognition clause and it says that he is included. Not specifically, but it says all "deputies" and he is a "deputy". It's just that as deputy, he is the Jail Administrator.
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  #5  
Unread 04-28-2004, 01:19 PM
HCA
 
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Default RE: Are union members still exempt/non-exempt?

This is the only exempt employee under the contract. All others are specifically excluded as supervisors. We have never paid him overtime before, but then I don't believe he has ever made a claim for overtime before.

The mgmt clause says that we have the right to manage, control and direct business in all areas including but not limited to: direct employees; hire, promote, transfer, assign and retain employees; relieve employees from duties; maintain operations; Determine methods, means, job classifications, and personnel by which we operate; take whatever actions may be necessary to carry out our mission; and establish methods and processed by which work is performed.

He does supervise other employees who are members of the bargaining unit. He would discipline those other employees, but would not be part of the grievance process if he grieved. The grievance deciders are him supervisors.
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  #6  
Unread 04-29-2004, 09:51 AM
Don D
 
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Default RE: Are union members still exempt/non-exempt?


>Being a represented emplyee or not is not a
>function in deciding whether overtime is payble
>to an exempt. If your contract calls for it,
>then you pay it.
>

I disagree that being represented by the contract is not an element in the decision, if I understand your statement correctly. Rather I think his being a member of the bargaining unit is precisely the fact that tips the scales and grants him rights to overtime, regardless of your assignment of FLSA status. If he is a member of the bargaining unit and the contract requires that members of that body are paid overtime, you have no options.

In right to work states, as this one, it would not matter if he were not even a member of the union. He is still represented as a member of the bargaining unit if he is within the group covered by the contract.

Don't forget that you have a right, as the employer, to file a grievance, have it responded to and elevated and ultimately settled by an arbitrator if you are adamant that he is not entitled to be covered by the contract. But it sounds as if he is.
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  #7  
Unread 04-29-2004, 09:55 AM
HCA
 
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Default RE: Are union members still exempt/non-exempt?

I just advised my bosses to pay him. Everything I have read is clear. In the meantime, I requested a Unit Clarification petition from our state personnel office. Thanks for all your help.
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  #8  
Unread 04-29-2004, 01:00 PM
Hatchetman
 
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Default RE: Are union members still exempt/non-exempt?

Don, unless, the contract specifically calls for the all emplyees in the unit to be non-exempt or that this partiuclar position is non-exempt, then the question is not addressed by the contrct and past practice would be relevant. HCA did not say there was any clause in the contract defining the position as non-exempt or exempt.

Whether a position is exempt or non-exempt is a function of FLSA unless a cba provision makes the position non-exempt (even if it could be exempt under FLSA criteria).

In this case, while HCA said that the company hasn't paid overtime, there was no mention on whether the employer actually treated th eemplyee as exempt or non-exempt -- in short, were absences docked based upon hours missed or was pay issued in line with the requirements of 29CFR541.118(a).


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  #9  
Unread 04-29-2004, 01:44 PM
Don D
 
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Default RE: Are union members still exempt/non-exempt?

I've seen many contracts and negotiated a few, but, never have I known one to address the subject of exempt or non-exempt. If the ratified contract says that employees are to be paid overtime for (whatever), then they must be, and that is a fact notwithstanding how the employer might classify them in terms of the FLSA. But, my standard disclaimer is "Except in California". x:-)
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