Exempt Time Wrangling

Is it possible (i.e. legal) for an employer to define some exempt employees as 40-hour per week exempt employees, some as 35-hour per week employees, some as 32-hour employees, etc. when all were originally hired for 40-hour per week exempt positions? This particular employer routinely reduces a 40-hour employee’s hours (as well as salary) if the work load for that employee decreases either temporarily or permanently. The employer does this at will and then often drags their feet in restoring the 40-hour status when the work load increases. All these employees are doing the same type job, have the same credentials and qualifications. Workload for this position is regulated by state law.

First of all, it's time for my standard disclaimer: I am not a lawyer. I do not profess to be a lawyer, and I do not give any legal advice.

It's perfectly legal to have exempt jobs at less than 40 hours a week. But, I think what your boss is doing is illegal. One of the criteria to be exempt is that the employee must be paid the same amount, regardless of the number of hours worked. If he were evaluating jobs and adjusting pay (note, not hours, because technically you don't pay exempt people by the hour, although you can require that they work specific hours), once a year I might buy it. What he's doing is trying to have his cake and eat it too.

There's nothing wrong with paying someone by the hour, even if their responsibilities would make them exempt. The key is, though, if you choose to pay them by the hour you give up the exempt status and if they work 41 hours, they get overtime pay. (There are some exceptions to this in IT, I believe, but we'll assume this is not that situation.) What you can't do is pay less when they work less than 40, but not more when they work more than 40.

So, my advice is to contact your state Department of Labor. I don't know what your job is that is regulated by the state anyway, but methinks it's time for an unpleasant audit.

Of course, if you are feeling compassionate, you could warn the boss that you believe his actions are illegal. I suspect he knows that already, and no telling the fall out you'd get.

It really bugs me when people attempt to treat their employees like dirt and then wonder why they have low morale and high turnover (which I bet you have!).