Publix Unpaid Overtime Class Action: What is Chinese Overtime?
May 1st, 2012. By AbiK
Chinese what? Ok, you’ve probably heard of Chinese water torture. And Chinese New Year. And Chinese take-out (personal fave). But Chinese Overtime?
Yes, Chinese Overtime. If you’re in a job in which the work hours tend to fluctuate each week and you get overtime pay, then you may have heard it referred to as either variable workweek overtime pay or half-time overtime pay.
The department managers and assistment managers who make up the class in the Publix managers unpaid overtime class action lawsuit probably don’t care what the heck it’s called—they just believe they’re getting screwed out of pay. And, if you understand how Chinese overtime works, they’re kind of right.
So here goes: a Chinese overtime primer for those who haven’t had the pleasure of being paid this way…
In some jobs, the hours tend to fluctuate each week. Busier weeks call for longer hours; quiet weeks call for shorter hours. Many times when a job’s hours fluctuate, an employer will pay salaries based on a fixed salary for those fluctuating weeks. So the base salary—the straight-time pay—is the same each week even though the hours may in fact fluctuate.
The upside is that when there isn’t much work, the worker gets paid the set straight-time amount. Sort of a mini-coup for the worker, right?—work less, get paid the same.
The downside, however…well, let’s just say the Publix managers have been living more of the downside (allegedly) than the upside and that’s why they’ve filed the Publix class action lawsuit.
Here’s an example of how it would work–it’s tricky so try to hang with me. Say you’re paid $200 a week as your fixed salary. So regardless of whether you work 22 hours or you work 46 hours that week, you’re getting paid $200 for the week. However, if you worked the 46 hours, you’ve worked overtime and should get overtime pay. And this is where it gets tricky..
See, because you were ALREADY PAID straight time pay for those six hours according to how your pay is calculated (i.e., you get a fixed salary no matter how many hours you work), you won’t get time-and-a-half pay for your overtime hours. Those six hours are paid at only HALF your regular rate–which in management’s eyes is time-and-a-half because they’ve already paid you your fixed salary for those six overtime hours.
Nice deal, eh? Hell yeah for the employers–not so for the employees.
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If you are going to use an example, use a correct one. This method is called salaried non-exempt employee status. The reason I made this statement is because take your "for instance" example. 200.00 / 46 hours = 4.35 per hour than your client would be in non-complaince with federal labor laws, failing to pay prevailing required MW of $7.25. They would be prime for a FLSA investigation by the WHD.
Bingo Terry! And that would be why there's this thing called a lawsuit going on…. 🙂
what about all the managers that were made to sign a paper agreeing to FWW pay and taking away our salary? Required to work 55 hours until it was changed a few years later to 50. I became an assistant meat manager in 1993.
also another down side to being way we were paid, if you were out of work or on leave you made less than you were normally paid unlike any FT associate you sent in sick pay and they brought home the same amount of money. didn't work that way for management
The "non exempt" verbage came about primarily because "Chinese Overtime" clearly states what it is, sneaky underhanded greedy and a shady "out" for employers. If going to be used, then own it.
Either way, it's unfair.
here is onother example just to put it into prospective. say you worked 70 hours because you short handed on help or during vacation time or holidays. this type of situation happens hoften. So you get your 200$ and divide it by 70 hours , 2.85 per hour. that would be the overtime amount you get payed for your 30 hours of overtime. 30 times 2.85 equal 85.50. 200+85.50= 285.50. for 70 hours of work. But you as manager on fluctuating work week must sign an agreement accepting this rules. I do not know if this is a widespread behavior in the private sector. with that said and done,In defense of publix, i can say that it is a great company to work for, I always will be greatful to them for giving me the opportunity to work for Publix. let us not forget that we have a profit sharing,in which publix gives to every associate publix stock at no cost to them for theyr retirement. I worked for Publix for 35 years and my profit sharing at retirement amounted to over 1.000.000$ at not cost to me. It is called hidden benefit .We also recieve a quarterly bonus from managers to part time associates. four weeks pay vacation, five if you have over twenty years of service. dept. manager get 80000$ yearly on avorage store managers 100000 plus.
Those days dropped Dead when Mr George died. Publix is a sweat shop where people are treated worse than cattle and 100,000 Part time workers at $9 per hr, WITH full time at $12/hr, carry the fat cats that manage the store ($100,000 A YEAR). Profit sharing is BS as Publix stock price (set by the Publix Board) Has not moved upward (22-1/4) IN THE LAST FIVE YEARS.
Publix corporate and sr store mgt's primary Objectives is to work the hourly personnel with threats and intimadations. IF you as a part timer don't kill yourself at work – or if you take 1/2 day off schedule to pick up your sick child school – You will get your hours cut to near zero the next week. Publix threats are carried out brutally with these over reactive hateful tactics that organized labor outlawed in 1928. Publix is funded by unfair labor practices and are ripe to see pro-union activity in the next several years.
BTW – Dept Mgrs do NOT make $80k/year – That is just BS. Asst store Mgrs are only at $70K and depy mgrs are LUCKY if they see $45k. Still, the number ONE obligation of ALL mgrs is to beat the PT&FT hourly staff into the ground at abyssmal rates of pay. AND, vacation will NEVER last longer than 9 days – even if your tenure allows you two or three weeks. If you don't think thousands of Publix hourly personnel are fighting mad – go to "pissed off" .com!!!
If the public knew how the hourly staff was treated, they would never shop at Publix. The Publix Public likes the staff and tolerates the Cigar Store Indians that look around and try to seem productive. THE PUBLIX DIRTY LITTLE SECRET IS GETTING OUT. And, they will certainly lose the overtime pay Class Action suit – Just too many Key settlements on this exact issue AGAINST other Corporate entities already. Publix is TOAST on this one. Publix could be the next Hormel (massive) labor unrest (circa 1982-1986). "A $million at no cost to me" That is a damn Fairy Tale – That never happened and never will for the rank & file staff hourlys that make up 90% of all store staff. Just like the Republican Party – Fat cats at the top getting rich while the working poor can't go to scholl to get their sick kids home. PUBLIX – The New Walmart (customers just pay more!).
I have been retired for a while. but if mr John Smith ( I doubt the name) would like to see my last year of work tax return I will be happy to provide it, along with my profit sharing retirement transfer into annuities of 1 million $. it is not BS.Graziano Fruzzetti. Yes it is my real name.
Chinese Overtime is federally sanctioned thievery.
I experienced in in '86-'87 in Texas, as a auto glass installer.
It both employees to run the shop which was open 60 hours a week.
$400/40 hours=$10.00/hour
But, $400/60 hours=$6.66/hour
$6.66/2=$3.33 $3.33×20 hours OT=$66.66, Total:$466.66, /60 hours=$7.77 per hour, 22% cut in pay.
So for $120/week, they didn't have to hire a 3rd employee.
When I called them on it, they told the manager(the 2nd employee) that I wasn't to work over 40 hours per week and were forced to hire a 3rd employee.
We will see a lot more of this with the economy and the demise of labor unions.
President Obama has hand picked the five members of the NLRB, who are all pro-union, therefore you will not see the demise of labor unions should Obama be re-elected.
Amen! Obama could be the next Teddy Rossevelt of the USA. John K and/or his brother could have been, if they were given the opportunity to live.
I just got screwed when a federal judge ruled for Chinese overtime. I never had a fluctuating work week! I worked the same 6 days a week, 11 hours a day. NONE of the criteria was met. The judge just flat out ignored the law & made shit up. He was also involved in other high profile cases involving big banks & KBR. 34 Oregon National Guard sued KBR for exposure to chemicals in Iraq. He ruled for KBR right down the line. The judges are bought & paid for and we are slaves…
The new NLRB judges are already in motion, and want opportunities to Rule on new Benchmark cases. Thank you, Mr. Obama
i was in management from 1994-2009 how to I look into this lawsuite ?
There's more info here: http://www.lawyersandsettlements.com/articles/ove…
And, if you'd like to file a complaint for an attorney to review, you can do so here: http://www.lawyersandsettlements.com/articles/ove…
same here concerned I was in Publix management from 1993 to 2003
I retired from Publix after 17 years….ten in management…..Publix will never be for the people as it was when Mr. George was active. George Jenkins was self made and built the Publix Empire himself. Then, the selfish children and nephews took over…private stock…all controlled by the family who comprise the Executive Board and the closed door meetings designed to continue to take away from the workers more and more…cutting bonuses, cheating pay raises, over focus documentation, and intentional scheduling the "over 50" to press them into stepping down to part time to save benefits, healthcare , payroll, etc………
I have been directed to shave off evaluation points, document every tiny thing someone does who is targeted by the store manager, …..
Back to the subject…you will never work less than 50 hours as a Publix manager…they will shave the payroll so you can't. When I had a manager and an associate on vacation ( no overtime )….I have been forced to work for as little as 90 cents per hour !
We all could have done better than that somewhere else.
NOT a great place to work ..not now …not in the future.
You said it James, cut cut cut payroll and why isn't this done. It was insane, I worked for Publix for 20 years starting back in 1984 when it was Publix and got out in 03. I go in the stores now and everyone says I should be glad I'm gone because it's only gotten worse. It will never be the same Publix as when Mr George was around. You are 100% correct with how things go with the family, all they worry about is bottom line not taking care of associates. Mr George knew without great associates there would be no great business
Interesting story. I've never worked for, or even heard of, Publix until this story, but whether or not they are a good company to work for is really beside the point. The real question is whether the workers in question are being treated illegally. It sounds like some or all of the employees in question may be being considered exempt employees under the FLSA, which governs minimum wage and overtime. Exempt employees are those who are paid a salary of at least $455 and whose primary duties are administrative or managerial (i.e. office workers). If you are an exempt employee, the FLSA does not apply to you and you don't get overtime unless your contract says you do. As a high school teacher, I am an exempt employee. I make $865/week. I don't have an hourly salary, so if my contract entitled me to overtime, which it does not, there would be a question as to how much time and a half really was. Chinese overtime is a relatively common way of determining that for exempt employees.
It works as follows. My contract obligates me to work however long it takes to get the job done. If on a given week that takes 35 hours, then I get an effective pay rate of about $25/hour for that week. On the other hand, if it takes 50 hours one week, my pay rate for that week is just over $17/hour. Chinese overtime would take the $17/hour, divide it in half ($8.50), multiply it by the overtime hours (10) and pay me $950 for the week. This method would pay me overtime and increase my paycheck over the base rate my contract specifies, but the longer I worked in a week, the less I would be paid per hour for the overtime bonus. Since I'm not legally entitled to overtime, this would always be more money than the FLSA requires me to be paid.
A different, and fairer in the eyes of many, way to calculate overtime for exempt, salaried employees would be as follows. Assume that an average work week is 40 hours, and that, with 2 weeks of vacation, the average work week is 2000 hours. Then my hourly rate is my annual salary, $45,000, divided by my work year, 2000 hours, for an hourly rate of $22.50. This is then used to calculate the overtime rate of $11.25/hr. For the example 50 hour work week above, I would then receive $977.50, an increase of $22.50 over the Chinese overtime method. That really is a fairly small amount compared to what I make, and I'd be perfectly happy getting paid Chinese overtime.
It is worth noting that the $435 threshold is $10.88/hr using the 2000-hour method and this is more than 1.5 times minimum wage, so in effect FLSA says, "You're already being paid more than we require for overtime hours, so you're not entitled to more."
The plaintiffs apparently do not dispute that they are exempt employees, but rather take issue with how base pay was calculated (it should include bonuses) and whether the pay rate was for 40 hours or for one week as it is for most salaried employees.
it is based on 40 but you are required to work 50 and no less. we had a base pay yes but the more you worked the less you made and you were told to cut payroll and the only way things could get done is stay. my father started with the company in 1963, I started in 1984, I grew up in the company and watched it go from amazing to not even a comparison today.
I don't know what makes Publix think it is legal to consider managers exempt employees under FLSA since:
1. All managers are required to work 50 hours per week; there is no fluctuation, and if a manager works fewer than 45, a reason for not doing so must be reported to the district manager weekly.
2. The department manager's job is not primarily supervisory (bakery, deli meat, produce, and grocery managers have to work most of the time. For example, grocery managers spend the majority of their time stocking, building displays, unloading/loading trucks, blocking, etc… They do not do primarily administrative/supervisory tasks.)
3. The rate of overtime for managers is based solely on their weekly base pay which does not include non-discretionary inventory bonuses.
What about non management making them work 16 hours one day, incurring overtime, not being paid for those overtime hours that day but making them work less another day…… taking those hours away so they dont' have to pay for them?
How many managers and assistant managers will this 30 mill be divided among.