As alert online readers are quick to point out, I’m not a legal expert. I’m just a keyboard jockey with a sympathetic ear and a tongue-in-cheek perspective on interpersonal conflict. Sometimes the most helpful advice I can offer is to go straight to an employment lawyer.
Spoiler alert: That’s exactly what I’m telling this week’s readers to do.
Q: I am in my 50s and have worked for decades as an employee for a large firm. I have been invited to continue performing the same functions I perform now, but as an independent contractor. I will lose all benefits and receive an hourly wage instead of a salary. If I do not accept, I have been told I must leave. Is this legal?
A: The Department of Labor, the IRS and a growing number of states (most recently California) take a dim view of employers that try to classify employees as independent contractors to avoid paying benefits and taxes.
I’m not qualified to say whether that’s what’s happening in your case. But you know who is qualified? Yep: A lawyer can determine whether your employer seems to be pulling an illegal bait-and-switch with your status, or making a defensible business decision to significantly scale back and outsource the work you’ve been performing — even whether you might be a target of age discrimination.
Even if this change is on the up and up, a lawyer’s support could come in handy. If you come back as a contractor, you’ll want to negotiate a new contract with adequate pay to cover your out-of-pocket costs and provisions to ensure you remain independent. If you’d rather leave, you might want help negotiating a departure that leaves you eligible to collect unemployment benefits.
Unlike writing to a columnist, consulting a lawyer is rarely cost-free. But an hour with a lawyer can keep you from forgoing money you’re legally entitled to — or wasting more time and money pursuing a lost cause.
Q: When the [Barack] Obama administration proposed to raise the overtime threshold to $47,476 in 2016, our employer changed many of us from salaried to hourly status. My office likes having hourly employees log in and out of the office for work, breaks and lunch to track our time; we did not have to do this as salaried employees. Working overtime is rarely allowed, so changing to hourly status did not benefit us at all. Even though this rule was blocked and then struck down, our employer kept us hourly.
Under the new, lower overtime threshold of $35,568 adopted in September 2019 that just took effect, many of us would qualify for salaried status again, yet our employer has not mentioned changing us back. Do we have any recourse under the new rule to be returned to salaried status?
A: The problem with using the terms “salaried” and “hourly” is that it oversimplifies how employees are treated under the Fair Labor Standards Act; the more precise, if confounding, terms are “exempt” and “nonexempt.” The difference between exempt-salaried and nonexempt-hourly status isn’t a simple dollar amount. It also depends on the type of work you do and other criteria. If you want to argue that you qualify for exempt-salaried status, you’ll need help from a legal expert who understands all the factors involved.
Bear in mind that even if you qualify for exempt-salaried status, your employer can still elect to keep you classified as nonexempt-hourly. In that case, your lawyer can advise you of your rights as a nonexempt-hourly worker, such as not being allowed to perform unpaid work during breaks or outside business hours.
Pro tip: For leads on legal advice for low-income individuals, contact your state’s bar association or visit Legal Aid.
Thanks to attorney Declan Leonard at BerenzweigLeonard LLP for talking through these scenarios.