Class Action - Chinese OT

Joined: 08 Jul 2003 Posts: 14 Location: Upstate NY

I'm looking for some input from all y'all who've endured this accursed payment scam - I mean scheme. I have retained an
attorney for my issues with Lowes, and his firm has been investigating a Class Action on Lowes OT for salaried/exempt employees. They are downright excited - attys. salivate when they smell corporate green. They are looking at Federal statutes, so the class would be nationwide - any/all Lowes employees who've been paid Chinese OT in the past 3 years (I'll have to double check the time period covered).
The suit would be an "Opt In" action - so any settlement wouldn't automatically be distributed to all potential class members - members have to sign up. I'd like to notify as many potential members as possible.

There have been a couple class actions toward Lowes - one in Pennsylvania and one in Alabama, but they have addressed the flexible scheduling issues, not the mathematics of how OT has been paid. To my knowledge, these other actions are pending settlement/adjudication.

My questions:

Is Chinese OT nationwide? Do employees in some states get real OT? No OT? (a la Depot - 40 hour workweeks+real OT for all positions below ASM).

Have SOS Commissions and/or SPIFFs or bonuses paid ever been included in calculating the OT rate in any location?

Would any Specialists, Dept. Mgrs. consider adding their names onto the suit with those of us locally?

Any info that could be shared would be helpful
re: Class Actions, Lowes history w/ class actions, other actions against retailers for OT

Joined: 08 Jul 2003 Posts: 214

prosales46

We all know that Chinese Overtime is not legal the way Lowes does it. I don't think there will be a problem getting people to join the class action if they no longer work for Lowes, the problem is the ones who still work there. I agree that it needs to stop, but I also know it will be termination for anyone who joins. You'll be asked by others, what good will it do to have a couple of thousand dollars in your pocket without a job? Lowes knows they're doing something that's not legal, but they also think the employees will never organize to do anything about it. If this class action happens(and i hope you'll keep us informed) the key will be in the numbers, that's the only thing Lowes sees is numbers. They can't fire everybody, the more people who sign up for this will be better, because that will make others sign up. They don't take a few people serious, but nationwide they'll listen.

The only two states that Chinese Overtime isn't paid by Lowes is Alaska & Calif., they have Law's against this kind of pay. In these two states Speacialist & Department Managers are paid by the hour and aren't on salary. I'm not sure if spiffs & commission or bonuses are included is the calculating. Everytime i ask Management about Chinese Overtime they turn red in the face and say they don't have time to talk about it.

Joined: 08 Jul 2003 Posts: 14 Location: Upstate NY

Thanks for the response Cabinetman. Yeah - there probably would be negative repurcussions for joining a suit against your current employer. Legally, they can't, but as we see, at-will employers can work up terminations for petty, even nonexistent infractions if an employee is on a hit list. Usually its "3 minutes late", "Didn't get signatures on the proper spot", whatever. We've all seen it, time and time again.

I wouldn't ask anyone to risk their job, but there must be enough ex-Lowes folks around that may be willing to get involved in such a suit. Please feel free to pass this on to any ex-Lowes salaried out there. Pass it on to current Lowes salarieds, as well. Like I said, the more the merrier - and the more that opt-in to such an action, the more Lowes will pay in settlement - and more likely to eliminate the Chinese OT practice.

Thanks for the CA and AK info.

I will keep this site informed of the progress of the suit.

Joined: 08 Jul 2003 Posts: 2 Location: southwest

I was with HD for a long time and we always got paid ot after 40 I dont understand this chinise ot but would like to keep informed of this suit just doesnt seem legal at all!

Joined: 20 Jul 2003 Posts: 13 Location: Metro Atlanta

I've heard about people threatening to bring these suits forward but have never heard about anyone actually following through with it. Prosales, what exactly are your attorneys saying about this? It seems to me that if it were illegal, Lowe's would have been caught long ago and given a cease and desist order on it. And yes, it's true about CA & AK having specific laws against this kind of pay. Oh, Prosales, just in case you and others are still calling it "Chinese" overtime, I'd suggest that you call it "Variable" while your in the store. You know how HR is on the prowl for people. I had my old PTC tell me to never use the Chinese description in the store again, since it has a disparaging(sp) connotation.

redsled
R3
D892

Joined: 08 Jul 2003 Posts: 14 Location: Upstate NY

redsled

Yes, "Chinese" OT is the common name, and also impolite (since it's the name of a great people, used as a disparaging adjective). "Variable" is better. My atty. said, however, that "Chinese" is the term he has found in his research of legal documents. Look in the Lowes Orientation booklet (these were green covered last version I had) for exact description and calculations.
My attys are saying that Lowes is in violation of Federal statutes in calculating OT. I don't want to get too specific, but they are very optimistic, and gung-ho about this action. It involves a lot of employees, and ex-employees nationwide. I and some locals intend to press through with this action.
In a settlement, each member of the class who opts in would recieve recalculated OT backpay - possible punitive damages are another point I will ask attys. to clarify. I don't know what the potential returns are for each member. Will post any info I can get.
BUT - the more who opt-in, the bigger the voice to the court and to Lowes. As CabinetMan said - all that Lowes understands is numbers.

hdrider -
FYI, this Variable OT Lowes uses to pay exempt staff is not "real" (time+time and a half) OT. Salaried (Sales Specialists, Dept Mgrs mostly) are scheduled for 48+ hours a week. They are paid set hourly rate for 40 hours, plus half time for the extra 8 hours. If you end up working 55 hours, that OT rate is reduced - calculated on a descending scale. I've had paychecks for lonnnng weeks (Inventory, Overnites) show a rate of $2.35 for every OT hour. We'd joke about it, but Adam Smith's "Rational Man Theory" did not seem to apply. We assumed it was part of the job, that there would be future rewards.

It's meant to be a disincentive for salaried staff to work OT, but management can/has abused it. I can't tell you how many times I've heard "You're salaried - you'll stay until this place is opening day condition" or some such inspirational talk. As a Dept Mgr I asked exempts to stay and sent hourlies home - makes sense, just don't abuse it. Previous SM scheduled himself a 4 day workweek, 45 hours at the most. He insisted salaried stay, and jokingly said a couple times "Send those people home - we've got the CHEAP help to finish up". He was fun to work for, however - gave encouragement, advice, was involved and cheerful, and thanked people for their input.

I've always been the type to stay extra, to do the job until its done, come in on my days off, be available during my vacations, go out to customer's house "on the way" home, visit install jobs, customer jobsites. I averaged over 55 hours paid each week for the past 4 years as Spec. and Dept. Mgr. - worked more than that. The results were good for the store and the customers. It was this new SM that really spoiled this job for me, and several others that have left or been forced out as I was. Oh well. It's been a nice summer, reacquainting myself with my family and friends. 40 workweek (MAX) looks awfully nice to me now.

Joined: 25 Jul 2003 Posts: 1

This is the Federal law...some states may have different laws...

Handy Reference Guide to the Fair Labor Standards Act (FLSA)

Salary -- the regular rate for an employee paid a salary for a regular or specified number of hours a week is obtained by dividing the salary by the number of hours for which the salary is intended to compensate.

If, under the employment agreement, a salary sufficient to meet the minimum wage requirement in every workweek is paid as straight time for whatever number of hours are worked in a workweek, the regular rate is obtained by dividing the salary by the number of hours worked each week. To illustrate, suppose an employee's hours of work vary each week and the agreement with the employer is that the employee will be paid $420 a week for whatever number of hours of work are required. Under this agreement, the regular rate will vary in overtime weeks. If the employee works 50 hours, the regular rate is $8.40 ($420 divided by 50 hours). In addition to the salary, half the regular rate, or $4.20 is due for each of the 10 overtime hours, for a total of $462 for the week. If the employee works 60 hours, the regular rate is $7.00 ($420 divided by 60 hours). In that case, an additional $3.50 is due for each of the 20 overtime hours, for a total of $490 for the week.

In no case may the regular rate be less than the minimum wage required by FLSA.

Hope this helps Rolling Eyes

Joined: 08 Jul 2003 Posts: 214

What you're saying is true Lowes Guy, if your a salary exempt employee. The key here is the word "Exempt". Go to the (FLSA) and read what it takes to qualify to be exempt. Lowes classifies Speacialist as exempt from regular overtime when they shouldn't. Department Managers are members of Management, Speacialist aren't. (FLSA) says you have to supervise two or more employees, Lowes policy says Speacialist don't supervise. (FLSA) says at least half your paycheck has to be from commissions from sells you've made, and any check that dosen't meet that, the employee has to be paid time & ahalf over 40 hours. Theres more but that one alone tells to story, Lowes has the Speacialist classified wrong. There's salaried exempt and salaried non-exempt, Speacialist should be salaried non-exempt.

Posted: Tue Jul 29, 2003 11:40 pm Post subject: Pay Attention Gang

In the next day or two, you will see a class action suit website happening. We are working on it as we speak. I was on the phone with the attorney today. Our goal is to find out the potential numbers of workers of have been cheated by Lowes. There are several aspects to the action, some better then others. Hang in there, and spread the word. You can find more details on http://youareworthmore.org/index.php?menu=1 starting on Wed July 23. This has been in the works for several months, and the potential recovery is substantial. We have an attorney who will take the case without any front money.

Joined: 29 Jul 2003 Posts: 4

I think you folks are looking at this in the wrong perspective. Most companies in corprate US that i know of have two types of employement. You are either salary or hourly. Salary positions are you have a set yearly income that your pay is based off of and hourly is just that, you get paid by the hour up to forty at which over-time takes place.
What you have at lowes is salary people that have a pre-aranged yearly income (that they accepted when taking the position )that is based off them working a mininum 40 hour week. After that 40 hour(unlike most other companies) the associate is given the varriable rate pay for additional hours worked.
Which is better being salary with no pay after 40 hours or being paid at least some additional money for the extra time you put in. I opt for the second.
You also have the option to drop to hourly were the pay is less and overtime is rarley allowed.

Posted: Wed Jul 30, 2003 4:20 am Post subject:

Actually Rblblood, it's not that simple. In fact, last year alone the Dept Of Labor collected 175 million dollars in back wages for employees who were cheated by their employer. There probably was twice that that never made it to the DOL because workers didn't know. Retail employers act like it is their god given right to take advantage of their workforce. No longer, times are changing, and the internet will be the difference in that education. Watch this Lowes suit unfold, becuase the numbers will surprise you.

Posted: Wed Jul 30, 2003 3:14 pm Post subject:

Important news for Lowes workers who may be entitled back pay for overtime worked! A must read! Thanks ReTIRED x Pres! Thumbs Up

Joined: 08 Jul 2003 Posts: 14 Location: Upstate NY

Rblblood:
The point is not that employees agreed to Lowes' wage plans, but that the plans are not in compliance w/ the laws of the land. I worked for 4+ years under the Variable OT plans, and accepted it - knowing how it was calculated, and that it was prone to being abused by many managers. I just liked working at Lowes.
It's kinda like going to the same butcher everyeek, knowing he's got his thumb on the scales, knowing you are being overcharged, but you do business with that shop, anyway-voluntarily. For whatever reason, you put up with it.
What Lowes has been doing more of recently is holding people's jobs over their heads - implicate (or even explicate) threats to their income. Through the review "process", through flimsy disciplinary actions, with more pressure to perform, stay late (you're "salaried" - you CHOSE to be forced to stay until the sun comes up), drop what you are doing, bark bark bark etc. It's become more and more of a Dogsled atmosphere - who are the dogs are, and who is holding the reins? And when do the dogs get shot....And forget about HR - they work for Lowes, not for the employees. HR's function is to fill the positions needed for expansion, and fix the personnel problems created by clumsy store managers. They are CYA staff for the corporation.

The scenario/analogy of doing business with the crooked butcher changes from a voluntary relationship to one in which extortion and abuse is used to coerce the customers(employees) in to get shortchanged.

According to the laws of the land, some of that money Lowes saved through their OT plans should be redistributed back to those employees who were shortchanged. It is right that we take that brave step into arguing for that redistribution.

This is a small step - there are others needed to protect the workplaces in this nation from becoming Third World hellholes. Look at the changes in our lifetimes. Where are the jobs going? What actions are corporate employers taking to reduce their labor expenses in the USA? LOOK at how are laws being modified to increase corporate profits by reducing wages and benefits and work environments and limiting legal recourse.

What can workers/voters do to ensure that conditions hard gained by our parents and grandparents won't be reduced?
American retail employees are at the front of this encounter - this is a consumer driven economy, and the retail sector is huge, and yet notorious for employer abuse of it's unorganized workers.
Will our children have a better life than us? That's a hard question to answer isn't it.
We can open our eyes - and be brave about our lives.

Joined: 08 Jul 2003 Posts: 214

prosales46, your message dated 07/29/03 hits the nail on the head. If we don't start taking a stand on the things that employers are doing to employees, it will soon be to late to stop them. And your right, we are headed to third world country status. If Lowe's is right on the Chinese Overtime issue they shouldn't be affraid to prove it in court. The main thing will be to get the word out. Most of the people in my store don't have a computer & internet, they don't make enough to afford it. Someone in each store will have to take the chance of being terminated by telling others. I remember something that Dr. Spock would say on Star Treak, "The needs of many outweigh the needs of a few. Thumbs Up

"

Joined: 06 Jul 2003 Posts: 41 Location: out west

I hope this class-action has immense success. I have never stepped into a "variable salaried" position because I could not understand the reasoning. The more time I dedicate to my employer the less valuable I become to them. Wouldn't we be a great nation if every employer thought that? We all would be either part-time or salaried. What kind of unfair advantage does the employer who has 80+ percent of its full time work force on salary, have over the competition? What I don't understand is why competitors have allowed this to happen! The whole structure is inherently wrong, and even in the business world, morally corrupt! The communist state is such that no matter the cost to the individual, the benefit to the state outweighs the individual's rights. Yet here in the good ol' U S of A, one of America's most admired companies operates under that premise! Battles are very seldom won without some sacrifice! If we do not want to visit the past with a heavy heart we must view the future with an enlightened mind!

Joined: 08 Jul 2003 Posts: 214

To those at G.O. who are paid good money to surf the net everyday reading our complaints. As long as i've been reading these message boards i've never heard an employee say anything that i haven't seen myself. I honestly don't believe you know what goes on in your stores, and as long as the numbers are good i really don't think you care. Do you know you have Members of Management who couldn't do an sos if they had to or an install sale, even though they are (so called) certified in both. Confused

We know all big business would like to see these message boards go away, and there is a way to do that, at least the complaint part. 24 million retail workers can't be wrong and they're getting their heads together thanks to the internet. We're tired of being treated like dirt, we're tired of being theatened & harassed, we're tired of all the petty write-ups, we're tired of all these policies we're told are company wide only to find out it's only a store ploicy, we're tired of not having a voice in what happens(like the smoking policy)and the new overtime policy that the labor department gave everyone 90 days to comment on, but the employees didn't know anything about it, because it wasn't posted in the stores like it should have been.
When we go to meetings we're told that all of us are adults, we should bring out the problems and discuss them, we did that, but no one listened, so we turned to the message boards, so who's really to blame for these message boards coming to be? Now we're being threatened for talking to each other on the internet. Now we ask you in the Home Office to be adults and realize you have some major problems in your stores. It's not members of management that makes the budget (they just get the credit & bonus for it) it's the employees, the people that mean nothing to you. We fight for the sells, management lets the customer bring it back. It's really a good incentive to make an sos sell, get paid the commission, and then have to pay it back because management let's them bring it back. Mad

You say that we bite the hand that feeds us when we complain, if we didn't care about this company none of us would be hear to try and solve these problems, we just wouldn't care.
The battle about Chinese Overtime, are Speacialist classified right by being exempt? You know the answer,read the quialifications on the Department of Labor web site, if you think what you do is right then by all means fight for it , that's what we do. It was meant for members of management for a little extra money, but we all know that Speacialist aren't members of management.
The bottom line is we just want to be treated like humans, we're tired of visitors coming in walking around with their noses in the air and want even speak to us, like they're above us. The best advertisment a company can get is from it's employees, employees have to be #1 for the company and then the customer will become #1 for the employee. Theres alot of work to be done. I know the hunt will be on to find out who i am, but a person can only take so much and then they have to stand & fight for what they believe in.

Joined: 29 Jul 2003 Posts: 4

Please Explain to me what the labor law says about salary positions WITHOUT variable rates past fourty. Are companies allowed to work there salaried employees as much as they want because of the prearanged annual base salary that the associate agreed to?
From my understanding that is what companies are able to do with salaried employees that are not set up with variable rates. Do you have to be a member of managment for this to apply or does this apply to all salaried associates.
Please inlighten me so that I may better understand

Joined: 08 Jul 2003 Posts: 214

Joined: 08 Jul 2003 Posts: 214

Does anyone know of any other company besides Lowe's that uses C. Overtime. As much as it puts the screws to the employee, it seems that if it were legal all companies would do it. Lowe's is the only company i've heard of that uses it. Confused

Joined: 08 Jul 2003 Posts: 14 Location: Upstate NY

Lowes is pretty much the only large size retailer that uses the OT plan in question. Variable OT is legal in most states. Other employers have either chosen to not use it to begin with, or switched as a result of lawsuits, or to avoid lawsuits.
Looking into OT lawsuits over the past few years (lots of them, with big settlements) one wonders what was going through the minds of Lowes GO when it was decided to take this flawed OT plan across the land with massive expansion. Either
a) This was a deliberate decision: Savings in payroll would be worth the risks/costs, or
b) The left hand (Payroll) and right hand (Legal) don't golf or BBQ together much, and so it slipped by. (Its too loud to have business conversations at NASCAR events).

My guess is first came b), then a). When the OT calculations were discovered to be a possible problem, I believe it was decided to let it ride: keep quiet about it and deal individually with those employees who might complain.

However -
once a Class Action complaint has been filed, ANY disciplinary action against employees tied IN ANY WAY to that Action will aggravate a courts decision. If there appears to be a pattern of retaliatory activity, the cost could be severe, certainly much higher than whatever benefits may be attained by such retailiatory actions. Lowes Legal would do well for the company to chain up the aggressive Yard Dogs types in the stores' Management staff so they don't cause such problems.

It is illogical for management to have an adversarial working relationship with the production staff, especially a staff which overall is committed to improving Lowes performance.
As evidence of that, look at the amount of Lowes stock owned, the HOURS they put in, the intelligence and the experience and the skills they bring to the job everyday, and look at the results. And this same staff puts up with this peculiar OT method to work at Lowes. If that's not dedication, than what is?

Keep records, document everything that may be retailatory, that could be intimidation, any unfounded disiplinary activity.

Continue to be good employees. Contribute to Lowes sales performance. Service and develop relationships with customers.
Take pride in working at Lowes.

Joined: 08 Jul 2003 Posts: 214

There hasn't been very many replies about this subject, but it's drawing more interest than any message on this board. I think most everybody is watching to see what happens next, they may feel bad about maybe going against the company they work for, that's certainly how the company hopes they feel. I have to look at it this way, if i see a family member doing something wrong and heading for trouble i try to stop it before it happens. I see this happening to this company, and i speak up about it. One thing we can be sure of is if a law firm files this class action suit with no up front money, they're sure they have a good case. I'm waiting like alot of you out there to see if the suit is filed before commiting myself. How about a poll of all the viewers. If the suit is filed will you join or not? Just say yes or no, don't give any other information like where you're from, store number or department, just yes i'm for it or no i'm not.

Joined: 08 Jul 2003 Posts: 20 Location: anywhere , America

Yes, I would participate. I think most people are concerned about this lawyer. How do we know he's not really from corporate Lowe's trying to get names of "troublemakers"? I am willing to take that chance. Again, we need to take a stand, there's safety in numbers. It takes a village to raise a child.......

Kinda reminds me of a song from the musical JESUS CHRIST SUPERSTAR. Jesus is told to shut his people up, and he says " why waste your breath moaning at the crowd? Nothing can be done to stop the shouting. If every tongue was still, the noise would still continue. The rocks and stones themselves would start to sing".

Eventually, we will make enough noise to make a change. We treat Lowe's with loyalty and respect and only ask to receive the same. We all have a common goal. That is to make a pleasant work atmosphere, help each other, and ultimately give the customer the best product and service we can. We all want Lowe's to grow.

Joined: 07 Jul 2003 Posts: 45

I'm not from Lowe's, I'm from Dollar General, but I can assure you that the attorney firm in question is not Lowe's Corporate fishing for names. I have had correspondence with Mr. Greenberg in regards to DG's payment of overtime to salaried managers. It's a completely different OT argument, based on whether the store managers are rightfully classified as exempt, and it appears they are legally allowed to do what they do with us, at least for now. That doesn't mean it's right, it just means it's legal.

But if Mr. Greenberg feels that you guys do have a solid case, believe him -- you have a solid case. He appears to really know what he's talking about, and he's on the side of the screwed worker, not the company.

Just wanted to let you know the firm is for real and they're aggressive about winning cases for workers who have been subjected to illegal applications of OT law.

Joined: 08 Jul 2003 Posts: 214

Thanks for the info magpie (about the lawyer)we watch whats happening at your company also, and wish you the best. Thumbs Up

Joined: 08 Jul 2003 Posts: 214

To all employees who have the right to join this lawsuit if it happens. Word of this is already starting to hit the stores, so start watching your back. Take note of any changes and make notes of everything and who said it and how it was said. They could put more pressure on you or they could even start treating you like a human to try to B.S. you. Note any petty write-ups, and if your called to the office for counseling make sure you ask for a witness of your choice in there with you, they want tell you that you can do that, but have a right under federal law to have your own witness present. Just stay cool, do you job the best you can(i know it's impossible to do everthing they say is our job) and watch for anything unusual.

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