Workplace Q&A: Part 12

Q: Can I be switched from a salary to an hourly wage?

“For the past two years, I have been paid a salary. My job has not changed at all. Yet last week my manager told me that I would be paid an hourly wage from now on. The good news, he said, is that I would now be eligible for overtime. But I did the math. My new hourly wage multiplied by 40 will be less than my old weekly salary. Can the company do this?”

A: Yes.

But there may be more to the story. You need to find out why the company is making the change. Quite possibly the company was informed that you are a “non-exempt employee,” as defined by the Fair Labor Standards Act. If so, then you should have been paid an hourly wage plus overtime for all hours worked over 40 each week. If you in fact worked more than 40 hours in any workweek, then the company owes you back wages. You can review your records, make a determination of the shortfall and approach Human Resources with a request for back pay. If you’re the only employee in this situation and the company simply made an honest error, you might indeed get the additional pay. But if you’re one of many, don’t count on it. Paying you what you’re due will set the company up for paying your co-workers, too. In that case, you’ll have to decide whether it’s worth complaining to the Department of Labor or just dropping the matter altogether.

Q: Do I have a right to find out why my wife was terminated?

“My wife was fired form her job last month. She wasn’t given a clear explanation of the reason for the termination. I tried to call her manager, but I was told the manager would not speak to me. Do I have any rights to get the information?”

A: No.

However, you can help your wife craft a letter to her manager or the head of the company asking for more information. You can also help her request her personnel records. If she hasn’t signed a release, you can help her file a complaint with the state anti-discrimination agency. In responding to such a complaint, the company would be required to give a written explanation as to why your wife was terminated.


Q: Can I bring a lawyer when HR grills me?

“A few weeks ago, I was called down to Human Resources and questioned about an apparent theft of proprietary software. I asked the HR rep if I could have a lawyer, but I was told no. Can I have a lawyer?”

A: No.

It is legal to refuse to allow you to have legal representation. But it still may be unfair and unwise.

Employees are obligated to answer questions about workplace events. There is no law that requires the employer to let them to have a lawyer during questioning about such events.

However, when an investigation involves potential criminal activity or serious misconduct, it is nonetheless fair and appropriate to allow an employee to have an attorney present during an interview. The attorney can be instructed to remain silent so that the company’s representatives can hear directly from the employee. Still, the attorney would be in a position to advise the employee before and after the interview.

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.


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