No Overtime for Contractors

October 14, 2004 1:09 PM

I'm working as a contractor. Recently management has decided that they will not pay overtime for contractors only. What we are to do is report the 40 hours to our respective agencies, and anything over that to our admin. Comp time is given equal to the amount you worked over 40 hours, not as time and a half. I asked if our agencies had been notified, and no one knew. Is the comp time policy legal?

How can I ask my recruiter if he has been notified and if so, should I have this added to my contract? My current contract states I get time and a half overtime for any hours over 40 a week. How do I address this without looking like a greedy malcontent?
posted by anonymous to work & money (18 comments total)

First, see if you're exempt (I'm assuming you're in a computer related field).

Second, talk to your recruiter and ask what their policies are, you are an employee of the pimp agency, not the client.

Third, if you're not satisifed, contact your state labor and employment division.
posted by m@ at 1:27 PM on October 14, 2004

Good god man.

I would have thought your agency will be most upset. In my neck of the woods, agencies receive a cut of your billings, and therefore your agent should be glad to be notified of a unilateral attempt to subvert your contract that will reduce your agent's income as well as your own.

How do you do notify them? I would make a quiet phone call, and then write a followup letter summarising the call ("just to confirm our conversation of last week"), keeping a copy. Paper trails are important.

Should you have this added to your contract? I can't begin to understand why you would accept this, and geez, if you have an employer who can't respect the contract you've got, why will they respect an amended contract?

Your employer is straightforwardly breaking your contract without negotiation. They have no leg to stand on if challenged (other than being able to afford better lawyers). You are not a greedy malcontent. You are being shafted by people who believe they can dictate the terms under which you work.

Personally, if you don't want to make a big fuss (I would, but I'm not you) I would contact my agent and ask if they can find you another position, explaining how you are both being stiffed.

I am a contractor, and one of the upsides to not having a career is that when your employer tries things like this, you tell them to get screwed and walk. That's one of the reasons you charge more than a salaried employee - to pay for your screw-you fund.
posted by i_am_joe's_spleen at 1:28 PM on October 14, 2004

[are you an american? bear in mind i live in a country with functioning labour laws. nonetheless, my cursory understanding of us contract law is that as in the common-law world, contracts can only be varied through agreement. they've broken it, you can walk.]
posted by i_am_joe's_spleen at 1:33 PM on October 14, 2004

Seriously, take this up with your agency.

They're going to be pissed and they can do something about it, since they have better lawyers than you.
posted by bshort at 2:16 PM on October 14, 2004

A lot of companies have been scrutinizing their freelancing/contracting procedures (due to the Microsoft thing or something). Where i work (i was freelance, then permanent, now back to freelance), everyone who works more than a certain amount of hours a month is now on the company's payroll system, and hours are being watched and tracked. I never had a contract specifying time and a half or anything tho.

Also, the company might be going along with your employer due to the fact they don't want to lose the business--tread carefully.
posted by amberglow at 3:37 PM on October 14, 2004

The company is trying to screw your agency out of OT, possibly in violation of contract.
posted by majick at 3:44 PM on October 14, 2004

Yeah, check the "fair pay" site in general, a lot of overtime stuff has changed in favor of the employer in the US in the last few months. If you had posted this three months ago, I could say with certainty "that is a bunch of illegal bullshit" As it stands, the new rules are complex and so while it may be bullshit, it may also be legal. However, I agree with majick, it sounds as though the company you work for is trying to both 1) screw you out of overtime pay 2) screw your agency out of overtime pay. However, they may just have good lawyers who said "hey now that the laws have changed, let's change our policies..."
posted by jessamyn at 3:58 PM on October 14, 2004

If you're on contract the client cannot make changes without written authorisation and expect them to hold. The agency that you work for - and that is who you work for - is a supplier, an outside business.

I would get on the phone immediately to the agency I worked for and fill them in. A lot of companies don't seem to get that there are legal differences between contractors and employees. When I read "...report the 40 hours to our respective agencies, and anything over that to our admin" I think that says it all. It's an attempt at a runaround.

Remember who you work for, and where your responsibilities lie. You're not being a greedy malcontent, you're covering your ass. If you don't tell your temp agency about this, that temp agency might fire you (or never call you in again) since you went along with a policy that negatively affects their business. Worst case if you call the agency is they say "yeah, we know, sucks but do it anyways".
posted by Salmonberry at 4:28 PM on October 14, 2004

Your agency will probably be very upset with you if you don't bring this to their attention immediately. As others have said, it's critical to remember who you work for.
posted by rushmc at 4:43 PM on October 14, 2004

If you have a contract with the agency that specifies that you receive time-and-a-half, you receive time-and-a-half. The agency should have a similar contract with the company you are working for.

The company can't just magically decide to change your wage. They have to renegotiate their contract with the agency, then the agency needs to renegotiate their contract with you. Each step requires consent of both parties

If the company has just changed their policy with respect to contractors then notifying you is nothing more than a courtesey. You should contact your contracting company and start to work out a strategy to deal with this situation immediately.
posted by b1tr0t at 4:49 PM on October 14, 2004

What everyone else said..

However, the first thing I would try is telling the company you're working for that they need to talk to your agency because that's who they have a contract with.

That way, the first time they hear dissent it won't be a rude call from the agency talking about litigation - which is bound to put them on the defensive. Give them a way to u-turn without admitting they were wrong. If you wanted to give a heads-up to your agency in advance ("[company] have said they'll be in touch with you to discuss proposed changes to the contract that I'm not entirely happy with") then that wouldn't hurt.

Make sure you're seen to be "trying to play by the rules" rather than "fighting back" and things will probably go smoother.
posted by cell at 1:29 AM on October 15, 2004

cell is spot on. I work closely with our HR department and deal with labor issues like this often (though not as obnoxious as this one). It's possible your contacting company is trying to dick you over, but a more likely scenario is that they rushed through a policy without thinking about the impact on existing contracts- it happens. Discretely bring it up with your contracting company's HR department, and play dumb- "My understanding is X, but this memo says Y. Can you please clarify it for me?" Whatever their response, don't agree to anything, and relay the conversation to your agency. At that point, you've fulfilled your obligation, and need to let the two of them sort it out.
posted by mkultra at 6:29 AM on October 15, 2004

Yeah, check the "fair pay" site in general, a lot of overtime stuff has changed in favor of the employer in the US in the last few months. If you had posted this three months ago, I could say with certainty "that is a bunch of illegal bullshit" As it stands, the new rules are complex and so while it may be bullshit, it may also be legal.

This is wrong. Assuming you are a true contractor, your relationship with the company is not covered by the FLSA, and the company has no obligation to follow its provisions. The recent regulation changes are irrelevant, since the regulations never applied in the first place.
posted by pardonyou? at 7:55 AM on October 15, 2004

An update from anonymous (note - I am not anonymous but I have been asked by anonymous to post this) :

Last night I pulled out my contract and read it. It states that agency does not allow any off the clock working and if the client ever instructs me not to report hours worked, I am to notify the agency in writing. Below that it specifies my hourly rate and overtime rate.

I am very, very expendable here. The contract length is indefinite, I'm the second newest person here (6 mos), and there's talk of a reorg in January. However, the client is obligated to honor the terms of my pay in my contract, and I'm obligated to notify my agency if they don't.

Do I approach my supervisor here at the client site and ask if they've talked to the agency about it? Do I contact my recruiter at the agency and talk to him before going to the project manager above him? Do I go straight to the project manager who deals directly with the client?

I am about 75% (well, ok, 100%) sure that if I do raise this issue, my termination will be imminent.
posted by Stynxno at 8:21 AM on October 15, 2004

If it were me, I'd follow the contract to the letter and notify the agency right away (by phone and in writing).

I sometimes contract and have ALWAYS been told that I work for the pimp, not the john and I'm not to bring any issues outside of duties to the company I'm working at. It may, in itself, be a violation of your contract to discuss this with the company you're working at without consulting the agency first.

Unless I had an extreme reason for staying at a job, I wouldn't let them screw me like this. Unemployment can be demoralizing but getting shafted by an employer can be even more demoralizing.

Other option is to work 40 hours to the minute, if you're asked to work more than that tell them to call your agency and clear it with them first.
posted by m@ at 9:17 AM on October 15, 2004

when i was a contract employee, i raised everything with the agency, never with the client firm (that is, the firm i was actually doing work for), because my employment was with the agency not the firm. you may well be expendable to the firm, but the agency may not be expendable to the firm. you and your agency (depending how long you've been with the agency) have an equally complex realtionship. the agency will need to protect both its contractors/employees and its clients to maintain profitable relationships. tell them immediately, in writing, what the firm has told you. ask them if they have a preference for how you handle work requests that will put you into overtime (they may tell you not to work more than 40 hours; they may tell you it's up to you). allow the agency some time to work it out; then talk to your agency about finding you a different firm to contract for, if it doesn't get resolved to your satisfaction.

i also sometimes had to refuse the firm's requests and always did so by referring them to the agency.
posted by crush-onastick at 9:22 AM on October 15, 2004

Your contract at this place might be terminated, but if you screw around with your agency, you could still end up losing your contract where you are, and never getting called again. Here's the thing about agencies: they don't lay you off and let you get unemployment, they simply don't call you. You end up with no income.

And there is no reason to expect that where you're currently contracted to would hire you. In fact, the way the contract is written, there's likely a non-compete clause with your agency which would mean the place your working now couldn't hire you without paying the agency a cut of your salary, and doesn't sound like the kind of place willing to put out extra cash.

Do as your contract stipulates and cover your ass. Hopefully this'll put you at the top of the agency's call-list, for all you know they might have another position for you right away.

As far as who to talk to - talk to your recruiter, whoever it is you report to and send your timesheets into. Once you've done that, you're out of it.
posted by Salmonberry at 12:12 PM on October 15, 2004

this is very simple. companies use agencies because they don't want to deal with the problems of having employees.

that's all well and good for them, but if you are working for an agency, you are *working for the agency*, and the contracting company doesn't get extra goodies. none. nada. in fact, extra goodies like you describe are almost certainly in violation of the agreements you signed with the agency.

so, in short take the advice everyone else has offered here. talk to your recruiter and explain exactly what is going on, and let them deal with it. they are responsible for negotiating all aspects of your contract.
posted by lescour at 8:42 PM on October 15, 2004