No Salary Employee Bonus for 1/2 year Employment?
I recently left a position as a "civil designer," the equivalent of a non-licensed civil engineer, to pursue a JD degree. I was hired to produce drawings and to coordinate land development issues between municipalities and developers. The position is described as being "expected to work no less than 40 hours per week." During the first half of 2004, I averaged 55 hours per week, which included all-nighters and many weekends. Bonuses are awarded (to all salary employees) in November after evaluating hours exceeding overtime and performance. Hours worked beyond overtime are emphasized and my performance was positively commented on by supervisors and the company’s clients. My experience is that ALL employees get a bonus and that the bonus "equation" emphasizes the number of hours exceeding the expected 40/week. I left the company in July (got married and began school). I was expecting a pro-rated bonus check in December. It did not arrive. I called the principle engineer who informed me that, “such bonuses were intended to be an incentive designed to satisfy current employees, not to compensate mid-year departing employees. Had [I] stayed the entire year, the bonus would have become vested. [I] would have been pleased because we had a good year.” He further stated that because it was my choice to leave, I forfeited my right to the bonus. Additionally, I was told that no company in the civil engineering industry gives bonuses to outgoing employee. This was said despite my receiving a check from the same company, following my first departure from the company in mid-year 1998. (Background: I worked for this company 1/97-10/98 and returned from 4/02-7/04). The November 1998 bonus, mailed to me after leaving the company, gave me the expectation for similar treatment in 2004.
If the company says the bonus is completely discretionary, and they are not required to pay salaried employees overtime, I am prepared to challenge my exempt employee status. There is a question as to whether I was an exempt or non-exempt employee given: 1) I was not a licensed professional engineer; 2) I did not act as a manager and was required to get approval for delegating any tasks; 3) I was required to account for my worked hours and note time off for doctor’s visits, etc. in 15-minute intervals; 4) I was in a quasi “on-call” status by virtue of lending my services to the company’s client as needed, which included weekends at times; 5) at one point I was charged a vacation day for not going to work on a Friday after working over 40 hours between Monday and Thursday (this was approved by my supervisor for scheduling purposes, but not approved by the company comptroller). I consider this a deduction of salary, since I regard paid vacation and sick time as an element of my overall compensation package.
In 2003, I received a bonus of $15,000 which equates to a little more than double overtime. This would not be such a big deal, but $4-6K to a full-time law student is a great deal. All sorts of legal theories are running through my head such as promissory estoppel, but after only 2-hours of Contract Law, I honestly have no idea as to whether I have a legitimate claim.
Answers (1)
Both of your issues may have some life in them. In fact, there may not be a need to elect between them, unless no hourly employees received them. This kind of industry is known for trying to lump everyone into a "professional" category and avoid overtime; you may be right about the lack of an exemption. These determinations are fact intensive, and the employer has the burden of proof on the issue. Second, as to the bonus, the former policy is one piece of positive evidence. The other is the extent to which the bonuses are formulaic rather than discretionary. The company may not condition receipt on your presence on the date of payment, but it could have a formula that says the bonus is payable when the employee logs more than 2,000 in a calendar year, for example, which I assume (and hope) you did not do. I am happy to speak with you further about these issues. Mary Keating
posted by Mary T. Keating | Jan 13, 2005 08:43 AM [EST]
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