Law advice

SkyHog

SkyHog

Touchdown! Greaser!
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Everything Offends Me
I know I'd be better off talking to a local attorney (at least, I assume this is state specific), but I wanted to get advice from the lawyers present on whether or not I may have a case here.

My employer, who will now remain unnamed (even though its been mentioned many times before) has pulled some very shady things in the past. I have put up with most of them with small complaints until now.

I need to preface the story with the fact that while we are all considered hourly employees, for some reason HR requires that we have 40 hours on our checks, nothing less. This policy is not written anywhere that is available to employees, its just something they do.

The office was closed from December 24th at 8pm until December 26th at 8am. People who were scheduled to work during that time were told that we would not have to burn vacation or flex time since it would be an immense amount of vacation wasted for days where we have no choice. My employer's HR department said they would waive the afformentioned "policy" for this instance (they did the same for Thanksgiving).

I took a few hours of flex time on my last scheduled shift before the office closed, knowing that another unpublished policy would be enforced, that being that I would forfeit any holiday pay offered for Christmas Day. I am fine with that.

I came to work on my next scheduled day, to find out that my employer is now requiring me to use flex time for the hours missed while the office was closed, since the only approval for unpaid time was that which was beyond the 8 hours of holiday pay for Christmas Day. This was never told to any employee beforehand, and its actually news to my supervisor.

I spoke with the HR department and the director of the office and was told by both that I would have to burn flex time for the hours the office was closed, end of story.

I feel I can no longer work for a company that pulls this, along with MANY other shady things which I won't mention here. I am planning on putting in my 2 weeks notice on Tuesday (my next scheduled shift), but I wanted to see if I should speak to an attorney about this.

Btw - I should define flex time. Our office has a few different buckets that we get time off from.

Vacation or Paid Time Off is time that is preplanned. For employees of my tenure, we receive 80 hours a year of this time.

Holiday, Floating Holiday and Fixed Floating Holiday is time that is given either as a floating holiday for holidays that fall on a day off, or holiday pay given to employees on days worked.

Flex time is personal time that can be used any way we feel fit. It can either be preplanned or taken as needed. There was a change to the policy in October of 2004 that said that we could use the time as we wanted without fear of reprocussion, as long as we have the time. We are given 64 hours a year of this type of time. This time includes sick time, personal time and any other non-preplanned time off.

What do you think?

edit: I forgot to mention that New Mexico is a hire and fire at will state.
 
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Well, I am not a lawyer and I think the best lawyerly advice will be to speak to a local employment attorney.

Regardless, I will advise you from the business point of view to suck it up for a few weeks. It is always easier to find a job if you already have a job. Stay where you are, burn your flex time as necessary for your holiday time, and use every working minute to get a different job. You need to be a able to tell the new employer that you are an employee in good standing where you are.

I don't know what the ramifications of a "hire and fire at will" state are, but I will bet that they cannot fire you just like that. They will have to give you some cause and you will have an opportunity to correct what is wrong. That means if they catch you on the phone/internet too often not doing company business, they will give you some sort of warning before canning you. Maybe I am wrong here. This is why you need to see a lawyer and find out the most graceful way to leave the company, i.e., to look for a job from your present position without getting fired.

Good luck with this. Happy New Year, huh? Well, the next job will be better. So Happy New Year anyway.... it will be!

-Skip
 
Nick:

I'm very sorry you're having to deal with this; bad employment practices hurt us all.

There is another alternative you may wish to explore at some point if you stay on this track. As a salesman once, I had a firm refuse to pay past commissions when I left a firm. The State usually has a person or office like a labor commssion that protects workers that don't get paid or from other illegal employment practices. I had spoken to an attorney about my situation that wasn't able to do much, and would have been expensive. The Labor Board asked for proof of my claim; once provided (easy in this case); they notified the employer if corrective action wasn't taken in three business days, any offices they had in the State would be shut down. I'd had chased these guys for several weeks and gotten nowhere; suddenly, this very pleasant top HR guy from the firm called and immediately worked things out. He sounded hurt that I could go to the labor commission!! I was very nice back, got my check and went on. Your circumstances may be more difficult to prove, but if it's happening to you, it's happening to a lot of other folks and the State may have resources that could be very helpful to all those involved. You won't be popular with your employer if you lodge a complaint, but sounds like you're leaving anyway.

Just another possibility to consider.

Best,

Dave
 
I agree with Dave, check things out with your State labor relations agency first, before looking for a lawyer.

Also, if there are any emails or memo stating what "policy" was going to be in effect, print them and save them.

Jeff
 
I agree with the other posters.

First, it is MUCH easier to find a new job if you're still employed.

Second, an initial consult with a good labor attorney would probably run you $100-$200 or so. If you decide to go after the company, you can expect to be fired. See point 1, above. Don't worry, since it's employment "at will", they don't have to give a reason, even if whistleblower laws apply.

Third, there are other companies that will not hire you if you've ever sued a former employer.

And finally, I'll bet that a look at your employee handbook will reveal that you are bound to mandatory arbitration in cases like this, rather than allowing you to take it to court. And I'll also bet that you agreed to abide by that provision when you signed for the employee handbook.

Finally, be careful posting derogatory information about the employer anywhere, especially on the internet. Some employers have been known to pursue legal action against folks that have posted derogatory information. Again, it's probably in the employee handbook.

I think you'll find that the employer holds all the cards. HOWEVER, if you can document that the employer is making you put down time on your timecard that you didn't work, or if they are requiring you to mischaracterize time, then the timecards are fraudulent (and with proof, you can show that the employer required fraudulent documents). In that case, consulting with an attorney is probably appropriate, and you may want to get the state attorney general involved. Again, I wouldn't even think about going down that road unless you have documented proof of fraud.
 
Nick;

I am not an attorney but have practiced HR for 30 years. I would go to an local attorney who knows your state laws. Most of us who work are what is called "At Will" employees. The basic definition is that if we work X-hours we get paid X-dollars. There is no contract. Basically it is an "Agreement that is arranged between the employee and the employer" It is right out of the 19th century.

What is very interesting in your situation is that your employer decided to shut down from 12/24 to 12/26. My question is how soon did they notify you of the shut down. If it was less than a month notice then you might have a strong case but if it is in the hand book, it will be more difficult

That is the key for they decided to say to you "We are closing and non-essential employees would be paid" through some sort of accounting mystery. I find this so awful. What they did was shut down and said, "Hey Merry Christmas and by the way you have to use your PTO or flex time. Wow . The majority of employers who do shut down for a short period of time such as yours would pay you at regular rate for unless it is a predetemined holiday shut down. In many manufacturing companies they would have a planed shut down period and all employees would be paid VAC time.

To help you I would need to know do you have what is called PTO time that covers all days off ie sick,vac,personal,holiday or is it very broken out by holiday,VAC and then lumping sick, personal days. Many employers are now using PTO(Paid Time OFF) that covers everything.

Nick; As one who has seen a lot in my work life I feel very sad about what is happening to folks who work very hard to keep things going. I have been in HR,for 30 years in emplyee relations and I see and hear much pain. I encourage you to check out the state labor rules and see if there is any recourse. Beyond that it will take a lot of time and effort on your part to get reconciliation. That is what employers really count on for they know most employees cannot afford a decent attorney

As Skip,Dave,Jeff and Bill have suggested , Hang in there. I would be glad to help you out in any way.


I am sorry I am so wordy but your concerns covers a very large issues that many of us will or have experienced


Let us know how it works for you

John
 
Thanks to everyone for their advice. I have set up an appointment with my supervisor, my HR department head and the director of the office to discuss this one last time. If we cannot come to an agreement, I'll be putting in my two week notice then. Whether or not I go to the labor board or a lawyer is a dilemma I have now. I am very strongly against frivilous lawsuits, and in fact against many lawsuits period. I also do not want to blackball myself in getting employment elsewhere, even though if this goes the way I suspect, I'll be applying to a non-serious job just to make enough to stay in college like Pizza Hut or something. It will suck, but not as much as being routinely abused by an employer at a job I don't like very much.

To John: My company has PTO which is only used for preplanned vacation time. Employees up to 5 years of tenure get 2 weeks of it a year. Our flex time is a lump of personal time and sick time. Then Holidays are kept separate.

Interesting sidenote - I work 10 hour shifts. On holidays, when I work my normal 10 hour shift, I only get paid 8 hours of holiday pay, and then 2 hours straight time. That is not written anywhere in our handbook either (and in fact, working for the same company in a different region had different policies).
 
Nick,

People who work 10 hrs days (4 x 10's) at NCDOT are to take 2 hours of vacation or sick leave everytime there is a holiday. Now that sucks. Too bad they just wont let the 4 x 10's work 8 hrs on thier regular days. That would make more sense.
 
SkyHog said:
edit: I forgot to mention that New Mexico is a hire and fire at will state.
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In NC, which also is an "employ at will" state, it's like this: they can fire you for NO reason. BUT they CANNOT fire you for the WRONG reason. So they could get rid of you because they don't like your work, or you, but they can't fire you because you're, say, Catholic.
 
etsisk said:
In NC, which also is an "employ at will" state, it's like this: they can fire you for NO reason. BUT they CANNOT fire you for the WRONG reason. So they could get rid of you because they don't like your work, or you, but they can't fire you because you're, say, Catholic.
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But they also don't have to give you a reason. Meaning you may never know why you were fired.
 
SkyHog said:
Interesting sidenote - I work 10 hour shifts. On holidays, when I work my normal 10 hour shift, I only get paid 8 hours of holiday pay, and then 2 hours straight time. That is not written anywhere in our handbook either (and in fact, working for the same company in a different region had different policies).
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Nick, PTO issues aside, if you are truly an hourly employee, I believe that your company is violating federal law if they don't pay time and a half for hours beyond 8 per day. Not a lawyer or HR person, but that's what I remember.

There are various conditions that determine whether or not your job qualifies as "exempt" meaning they don't have to pay overtime so you may not really be hourly.
 
lancefisher said:
Nick, PTO issues aside, if you are truly an hourly employee, I believe that your company is violating federal law if they don't pay time and a half for hours beyond 8 per day. Not a lawyer or HR person, but that's what I remember.

There are various conditions that determine whether or not your job qualifies as "exempt" meaning they don't have to pay overtime so you may not really be hourly.
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Unfortunately, I looked into that when I first started. New Mexico specifies 40+ hours a week as overtime, and sets no limits based on hours worked per day.

New Mexico also has great laws like lunch breaks are not required if the person is given a chance to eat while working. At least my employer doesn't pull that one.
 
Nick: Don't Screw around. Skip gave some good advice. Take it. Secondly who said anything about going to a lawyer means frivilous lawsuit. Just go to get information and learn what you and your employer can and can't do. Thirdly Please don't make these posts from your company computer. Fourth Good Luck.

I'm not a lawyer on T.V. but I do play one in real life.
 
Nick;

Adam Z says it so well above. I would follow his advise.

Interesting is that your employer has different policies for other locations. I wonder if the company is one of those "Shell Companies" that ran around buying up local and regional companies and just put a new name on the sites.

Let us know how it goes for you and good luck.

John
 
Yeah, not sure how beneficial this battle will be. I was in a similar situation with my previous employer. When I sent an email to the owners voicing my concerns (at the end of a 15hour day), the 'troubled' owner responded with "I just don't work hard enough to be noticed."

They're lucky I didn't have a gas can and matches the next day... :) j/k

They've already shot themselves in the foot because now you're going to be MUCH less productive and suck up cash from them by just being employed and not wanting to work for them.

For me? I sucked it up, even though everyone could 'feel' that I was unhappy. Played games for a good 3 weeks straight, and then found my current job. I'd do my best to keep that GOOD reference from them and find another place to work before leaving. I gave my 2 weeks notice and kept the promise to the day. I got really good at Spider Solitare though! ;)

Hey, you can show up late during that time too...
 
woodstock said:
any news?
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Nope - the office manager has decided to be very scarce the last few days. I don't know if its relatated or not, but I'm waiting until I hear from her lips "Nick, you have to use your flex," before I proceed.
 
yeah, Air Baker - always paid for time over 40 hours a week.
 
Nick;

When the management goes into the "Cone of Silence" It could mean that they are cooking up some sort of brew. Make sure you keep a diary of your work day and look for any change in behavor from your management. Keep a log of activities. Most of all follow your job description. Do not give them any excuse to can you. Build some referances as well, incase you have to jump ship.

Hang in there and best of luck Let us know

John
 
well, here's the final update for a while.

I talked with a representative from the Labor Board, unofficially. We didn't exchange names or company names. Apparantly, in this state, if a company chooses to close for some reason and doesn't give the option to employees to work, they can either pay them or not, but then cannot require vacation or personal time be used for that day.

It was also revealed that the best I could pull would be that I would forfeit the pay for the day and the hours would be put back into my flex bucket. The downside is that in most cases, the employer chooses to release the employee.

So the best I could have hoped for would be to win, not have a job, and get 8 hours of pay deducted. Since I wouldn't have a job anymore, there'd be no bucket to put the flex time back to. Essentially, my employer wins either way.

I told my supervisor today that if they would reverse their opinion, that would be great, but I'm done fighting either way. I am not happy, but I am making more money here than I would anywhere else (by about 7 or more dollars an hour).

Here's how I feel: I have lost any trust in this company, and I will not volunteer to help out in any way. I will do the job that I am assigned, and not a thing more. I will stay here until I either get fired, or I find a job that pays a similar amount. If I get fired, then I'll know that it wasn't my choice to take the paycut, and something I have to do, but at least I won't be making much less money and realizing that I did it to myself for my principles.

I hate this state.
 
Nick, sorry that you're screwed either way. The alternative is finding a salaried position. Of course, the trade-off is that in exchange for the "guaranteed" salary, you likely won't get paid more when told to work more than 40/wk.

One of my friends gave me some sage advice several years ago: "If it was fun all the time, they wouldn't call it work." Truer words have never been spoken.

Jeff
 
this is why i work as a contractor (or "job shopper") in aerospace. we work the duration of whatever project, we make a higher rate than the "directs" and we get time-and-a-half for our overtime. in exchange, we don't have the "job security" of a direct employee, but who has any job security anymore? :dunno: i just figure i've got about 2 weeks head start on finding the next job when the layoffs hit.

i'll take my money up front, thank you very much. :yes:

the only caveat is that we MUST save on our own for retirement/unemployment/rainy day. can't spend every dollar we make. :no:

don't confuse this with working for "temp" agencies. they're a big rip-off. usually pay LESS than the directs and treat you like crap.

just my $.02 worth.

blue skies,
 
Sorry you have to go through this Nick.

IMO, if they're not adding value to you as you are adding value to them, you lose. I can't argue against their decisions on hours/vacation time, but it does suck.

Keep your options open, and something always lands in your lap.
 
SkyHog said:
Here's how I feel: I have lost any trust in this company, and I will not volunteer to help out in any way. I will do the job that I am assigned, and not a thing more. I will stay here until I either get fired, or I find a job that pays a similar amount. If I get fired, then I'll know that it wasn't my choice to take the paycut, and something I have to do, but at least I won't be making much less money and realizing that I did it to myself for my principles.

I hate...
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A lot of that in America today. That is a lot of the attitude that led to unions (and, were it not for the other problems that came with big Labor, would sustain unions today). Treat employees like dirt, they become embittered.

BTW, I think anger toward the state is misdirected. IMHO.
 
The difference between contractors (of which I am one) and employees is that the contractor KNOWS he's only there temporarily.

If everyone would be paid their full hourly wages and had to pay monthly or quarterly taxes, we would have a tax revolt in 6 months. It's amazing how much different it feels when it's real money and not just deductions on a pay stub.
 
Nick;

I can identify with your experience. Trust between employer and employee is at a new time low these days. I guess that is why for over 25 years I have worked as a 1099 or a W4 temp. It is very hard to work that way for you have to pay so much for health insurance and save for "rainy days" college, etc. but it is well worth it being in charge of you own work life.

Let us know how it goes for you. Hopefully you will find an employer who is decent soon


John
 
I thought this would be resolved by now. Unless hearing otherwise from Nick I would say he's going into the truck business.:rolleyes:
Word: Nick, save all your nuts, you're gonna' need them. If you've already been doing that, save even more than you have been.
 
Richard said:
I thought this would be resolved by now. Unless hearing otherwise from Nick I would say he's going into the truck business.:rolleyes:
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Heh... Honestly not a bad idea. My CDL is the most valuable piece of plastic I own, I know that even once I've moved on, I'll always be able to get a job if I'm in an industry that tanks. Money's pretty darn good too.
 
flyingcheesehead said:
Heh... Honestly not a bad idea. My CDL is the most valuable piece of plastic I own, I know that even once I've moved on, I'll always be able to get a job if I'm in an industry that tanks. Money's pretty darn good too.
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What are doing here this time o night? Shouldn't you be staring at that white line?

What I meant by the mentioning the truck was that Nick is about to embark on a labor of love centered on a certain p/u light truck.

But since you're here maybe you can answer my question. What kind of living can a newbie O/O make at $0.43/mile? I pick that number because it's the one most often seen scratched onto the stall walls at truck stops.

Oh yeah, do you ever find yourself almost saying, that's a big 10-4, good buddy, in response to a landing clearance?:rofl:
 
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Richard said:
But since you're here maybe you can answer my question. What kind of living can a newbie O/O make at $0.43/mile? I pick that number because it's the one most often seen scratched onto the stall walls at truck stops.
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Owner-Operator at $0.43/mile? That's gonna be a negative income. That's company-driver pay. Funny thing is, O/O's are making less than us company guys now. Between truck payments, mx, fuel, bennies, etc. and $0.90 or so per mile, it's gotta be tough on them.

Anyway, while my base rate is $0.365/mi, with all the extra bonuses and extra pay, I actually got about $0.462 across 125,500 miles this year.

Oh yeah, do you ever find yourself almost saying, that's a big 10-4, good buddy, in response to a landing clearance?:rofl:
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No, but when I was transportation manager for the Southwind drum and bugle corps, I was leading a convoy all summer long and I knew I'd been doing it too long when I said "10-4" on the phone. My CFI has the same problem - I can tell he's been flying too much when our conversation goes like this:

me: "Hi Joe."
cfi: "Good afternoon."
me: "I was wondering if you'd be able to go flying this afternoon at 3?"
cfi: "That's affirmative."
me: "OK, can you put me on the schedule?"
cfi: "Wilco!"
me: "Thanks! See you at 3!"
cfi: "Check! Good Day!"

:goofy:
 
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