Being run out of my job for discrimination AND am filed as "exempt" and don't think I should be

I am an “exempt” employee for a travel firm which plans meetings and requires me to travel at least once per 6 weeks for about 10 days. When I was hired in April 2004, I was told I would receive payment for weekend days worked – in the form of a bonus check. Then before my first job away, they changed the policy to a comp day per weekend day worked. Soon after, they changed it to a half day comp per weekend day worked. Now they have taken away comp days all together and are suggesting either I leave the job or abide by this new policy. They blamed it on HR but when I asked HR about it, they said that was a lie (or “misunderstanding” was their word). Anyway, I am one of two associate managers who travels. All others who travel are Meeting Planners. A note: meeting planners get bonuses and much more pay for working meetings so weekend pay and comp days are a much less significant perk in relation to the meeting as a whole. The other associate is the niece of the owner so. I believe I am being singled out due to the fact that I am the only one truly affected by this. I believe it was an action taken against me because, as one planner told me when I didn’t make a presentation as nice as she wanted, that I will never make a good planner because I am "not gay." (The two male planners in my company are gay.) I am not gay and really have no intentions of becoming a planner. I believe they are trying to run me out of the company because, rumor has it, they won’t fire anyone. They are fully protected in my employee agreement to change policy whenever they choose, but this is a policy change which only affects me. Planners are allowed to take days off after traveling by saying they “work at home” but associates are not given that option (unless they get special permission). And I usually can never get in touch with a planner when they “work at home” so Im not sure what that means. I think they are given days off but associates are not. The neice has been given two comp days due to her traveling on weekends. But I have been given none and I WORK on weekends and travel home on weekdays.I am wondering if I have to bite this or do I have any legal recourse. (sorry for the winded story)Plus, I do monkey work all day, mostly data entry, phone call backs, registrations for meetings - I do not make any decisions of significance for this company - Planners make all those decisions. Plus every time there is an assignment for me, they tell me what to do and show me how they want it done. I am trying to understand why my position is exempt. And I believe it is so they do not have to pay me for weekend work. Also, HR said they may have to re-evaluate my status because of the points I brought up to them.

1 answer  |  asked Aug 31, 2005 12:44 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
It's Your Job, Not Your Title

The general rule under the Fair Labor Standards Act is that an employee is entitled to time-and-one-half for yhours exceeding 40 hours in a workweek. However, there are a number of exemptions, the most important of which are for executive, administrative and professional employees.

These three terms have a very specific meeting, and employees who might otherwise fall into an exemption might nonetheless be entitled to overtime if the employer does not comply with a number of requirements.

You fall into an exempt category depending on the work you actually perform. An employer might call you "chief executive officer," but, if your job is to sell Italian ices at a counter, you are going to be considered entitled to overtime as a non-exempt employee.

The determination of whether you are exempt or non-exempt is fact specific. Although you fact situation needs to be looked at more carefully, it looks as if you are a non-exempt employee entitled to overtime.

Private employers cannot substitute comp time for overtime. Only government employers may do that.

I would suggest that you contact me or another employment attorney to discuss the details of your situation privately.

Incidentally, it does not seem that you have a discrimination situation. The anti-discrimation laws do not cover all forms of discrimination.

Although you have some evidence suggesting discrimination based on sexual preference, and New York State's and New York City's Human Rights Laws prohibit discrimination on the basis of sexual preference, the comments forming this proof come from an employee who would likely be considered more as your co-worker. That employer's comments probably would not be enough to hold the employer liable, but, again, your fact situation needs to be looked at more closely.

posted by David M. Lira  |  Aug 31, 2005 5:23 PM [EST]

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