Labor law help needed for socal govt contract employee

December 27, 2008 8:38 AM

I believe my company, a government contractor, is using alot of grey areas in their employee time cards to get away with paying as little as possible. For example, I am listed with them as "salary", which by my understanding would mean I get x amount of payment per pay period. However, they still have everyone fill out a time card, and pay us per the hours we have worked.

However with widely varying schedules each week due to employees being sick, or managers (who do not get paid by hour but really are salaried) taking our shifts, it means our paychecks can vary by several hundred dollars either direction.

Now this means on the upshot, I have some weeks I get to pull in more hours, and to be honest this happens more often than not. However, since they list our positions as "salary", any overtime is treated as a normal hour. We do not get 1.5x for hours over 40 per week, and do not get 2.0x for holidays, etc. We just get the same rate for every hour we work no matter when it is.

At this time let me point out that everyone's shift here is, by virtue of the fact we have 12 hour shifts for 24/7 positions and the number of people we do, a minimum of 84 hours per 2 weeks. Thats broken into a 60 hour week, and then a 24 hour week. I can provide more details on how that breaks down if it seems relevant to the issue.

Even though I'm not totally comfortable with the setup as is, I can deal with it for the most part. Concern grows however, when in the past several weeks, a sub-contractor to our company, who supplies some of the employees I share shifts with, determined our jobs to be "hourly" and has granted their people 1.5x OT and 2.0x Holidays. Our company will not grant that to us, and has now infact, cut that sub-contractor's employee's hours down to 40 per week max to avoid having to pay higher rate hours. They are now "reviewing" our entire job description in an internal investigation to find out if we are salary or hourly.

My first issue is that the people doing the review are all pro-company managers, who are NOT accountants, lawyers, or have any qualifications that I can see to carry this out. My second issue is that pending the outcome of this "investigation" we have now be subject to many rule changes.

Sick time, even though our normal shift is 12 hours, can not be used more than 8 hours at a time (per day out sick), and can not take you over 40 hours in a week. This means a day I was sick last week and took off, which I rarely do, I have lost half of my pay for, despite having 100+ sick hours saved up. If I had come in, I would have been paid 12 hours. I was too sick, so I only get 6, because the other 6 would have put me over 40 hours that week. We have in the past ALWAYS been able to use up to our "expected scheduled shift" worth of sick time per day we call out. After the fact, and after I challenged this with my manager/pay-approver, an email was sent out explaining this new rule.

So, how can you help? Thanks for asking.

I need to know, specific to Southern California, or Government contracts, as much as I can...

A) How can I get a *real* investigation into they payment practices started, by a labor board or such?

B) Is there any recourse you know of, or could see, for me to get my 4 hours sick time. I admit its more of a principle issue than the 4 hours of pay, but I'm really really pissed over it.

C) If our jobs some how are declared truely hourly, is there any precident for possibly getting the past 2 years of my life here reviewed, for a chance at pack pay for all of those 1.5x and 2.0x days I've put in?

I know no one here is a labor lawyer, or my specific lawyer, and I am fully aware I am not one either... but help if you can. Also, note, we are NOT unionized here.

If someone would like more information or to discuss this directly, you can email me at [e-mail]. Thanks.

posted by anonymous to work & money (14 comments total)

Iam an employment and labor lawyer who sometimes deals with federal labor contracts which possibly involve the Service Contract Act. However I am not barred in your jurisdiction, which means I cannot be your lawyer, nor can I give you legal advice. I suggest you contact the National Employment Lawyers Association (NELA). I'm on a BlackBerry so I can't link to it, but they have a lawyer locator on their webpage.

If you have a union, contact your steward immediately.
posted by Ironmouth at 9:03 AM on December 27, 2008

I see you are not unionized. I suggest you call a union to see about unionizing, if you are in an eligible position.
posted by Ironmouth at 9:05 AM on December 27, 2008 [1 favorite]

That actually seems fairly normal to me. I used to work a salaried 8-hour shift job for a gov't contractor, and while we got shift differential for 2nd & 3rd, we only got overtime if we worked more than 96 hours in a 2 week pay period. It's lousy that they won't let you use sick time up to your regular hours, but that sounds more like a company-wide policy that is built into the time system vs. a conspiracy to pay you less.

Keep in mind that if a labor board starts investigating, the company could decide to make it a straight salary job, with no overtime pay at all. They're not obligated to do the same thing as a sub-contractor. Where I worked some of the subs had better benefits than us & others were treated like dirt, so that is allowed to vary by company (in Colorado, at least).

With all that said, it might not hurt to check with a lawyer. A few months after I left the aforementioned salaried shift job, I got a nice check from the company because they had apparently been miscalculating shift differential. So it is entirely possible that the company is ripping you off, knowingly or not.
posted by pmann at 9:07 AM on December 27, 2008

I used to work for a government contracter in a very similar situation you describe.

Some of the positions were "exempt" and some were "non-exempt".

Both groups were paid hourly, but exempt positions were paid straight time (1x) for all overtime worked over 40 hours a week and non-exempt were paid time and half for any hours worked over 8 for days 1-5 or for all hours worked on a 6th day of the week and double time (2x) if they had to work a 7th day that week.

I dont know if the government really cares HOW you are paid (exempt or non-exempt).
Normally, they just give your employer $x amount of money for your position in return for x number of hours of your work and its up to your employer to make sure that there is a person performing the required job for the required number of hours per the contract.

Now the government DOES care that you (and your company) accurately document the time that you work so that they (the government) knows they are getting what they paid for. If the numbers on your timecard dont match the work actually performed, then thats timecard fraud, and the government would be VERY interested in knowing about it.

Now state law may also dictate how overtime is paid, but that is beyond my experience.

In the absence of a state law dictating how overtime is paid to an employee (or specific conditions in the contract), I would guess that it is indeed up to the company how they want to pay a position. Ive worked in both exempt and non-exempt positions and my experience shows exempt positions are usually for manager types who regularly have to work some overtime and non-exempt are for worker-bee type positions where there is little to no expectation to work over 40 hours a week, but YMMV.

Hope this clarifies some.
posted by Fiat124 at 9:28 AM on December 27, 2008

I'm going to assume you are working a position in the United States covered by United States employment law. If this is not the case, ignore this answer.

First thing first - get over the notion of "hourly" versus "salaried" versus "non-overtime" versus "1.0x overtime" versus etc. There are only two types of employees in the United States - employees that are exempt from the provisions of the Fair Labor Standard Act and those who are not exempt. You need to determine if you are exempt or if you are non-exempt. Here is a quick description of how you determine what you (think) you are. There are more articles easily available online.

If you think you are non-exempt despite currently being classified as exempt, most likely you are indeed due at least 1.5X overtime pay. Normally, this is paid over any time greater than 40 hours per week. However, depending on your arrangement with your employer, there's a little bit of flexibility on their part (although not much). If you do choose to pursue this, get a lawyer. The lawyer will either take your case without much questioning if they think you can win (because they get their fees paid by your attorney) or will tell you to go away. If they tell you to go away, believe them. Remember, standard practice for the employer when receiving these lawsuits is to promptly fire the employee after the lawsuit is resolved or else forever more deny them overtime (hence, eliminating the issue of overtime pay).

If you think you are exempt and are currently classified as exempt, you don't really have much to go on. Generally, exempt employees are never paid overtime, with government contractors being one occasional exemption. When they do pay you overtime, it is out of courtesy or for retention, not for any legal reason.

If you are currently classified as non-exempt, regardless of what you think you are, your company is most likely in the wrong. There is no such thing as 1.0X overtime for non-exempt employees. Any overtime is done at least at a 1.5X rate. However, I doubt this is the case.
posted by saeculorum at 9:31 AM on December 27, 2008

Er - I meant to say that lawyers like to take employment cases because their fees are paid by your employer.
posted by saeculorum at 9:33 AM on December 27, 2008

saeculorum : What's the logic behind the exemption categories? I can understand purchasing agents, executives, etc. But why engineers?
posted by jeffburdges at 10:46 AM on December 27, 2008

Agree with others- "salary" generally means at least a minimum amount that it paid per time period. It is my understanding that "salary" isn't really a legal term in this scenario, unless you are in a position where you are working so many hours for so little money that it ends up being below the minimum wage when you divide it our per-hour. (This often happens in minimum wage jobs, where the employer makes involuntary pay deductions for things like uniforms or cash-drawer shortages.) So if it's not a minimum amount you are guaranteed, it's not really a salary.

But yes, in your case, the legal issue is exempt versus non-exempt. For example, one scenario I've encountered is where a non-exempt employee is paid a certain salary per month. That covers them working their usual 8 hours a day, regardless of their use of sick/holiday/vacation/personal days. Any time over 40 hours is overtime.

To answer your question accurately, you need to figure out whether what you do is exempt or not. Law is here. Speaking generally, you need to meet all the criteria, and if you do meet all the criteria, the fact that some of your job duties might be non-exempt doesn't change that some of them are exempt. Said another way, if you in fact meet the requirements for exempt, it doesn't matter if you also are in charge of sweeping up at the end of the day.

Also noteworthy is that they CAN pay their employees in excess of what is required. They just can't pay less. So if you are exempt, they are allowed to compensate you for extra time. But there is no requirement that it be 1.5x or 2x. Time and a half is only required for non-exempt employees working over 40 hours. It is not required if you work 10 one day and 6 the next. There is NO requirement for double time- that is a custom that exists to give employees incentive to work holidays if required. I think it came about via union contracts.

Depends on the specific laws of the state you are in, of course. I do know that overtime laws, when the employee is non-exempt, depend on the customary work week/period. For example, if the customary work week is Monday through Sunday, any hours worked over 40 in that week are overtime. But if they have it set up where the work "week" is really two weeks, then overtime would be any hours worked over 80 in that period. The main thing is that they can't change their customary period, once established, to avoid paying overtime. IE, changing the work week to Friday-Thursday for one week.
posted by gjc at 10:57 AM on December 27, 2008

To answer the "why engineers" question, it's because engineering is considered to be a professional occupation like doctors and lawyers. It's a thinking profession.
posted by gjc at 10:59 AM on December 27, 2008

I think there are a lot of good answers above. I would also suggest contacting a federal government employees union, and they might be able to answer your question. Or you can also contact the Department of Labor in your state.

I work for a labor union, and we were organizing some RNs. It is almost the exact situation you are in, and they are exempt under the law. It is pretty messed up but true.

On the other hand, I was working with some IT professionals at a state university, and they were wrongly classified, and the university was forced to change their practices.

By the way, both of these groups are non-union, if you have a union, then this stuff doesn't matter as much, it is all negotiable.
posted by hazyspring at 11:20 AM on December 27, 2008

But why are thinking professions exempt? I can see it being hard to classify hours for some thinking professions, but I don't see why that totally excludes them.
posted by jeffburdges at 3:01 PM on December 27, 2008

"But why are thinking professions exempt?"

I think the reasoning is that these are physically easier jobs and thus you don't need as much rest.
posted by Jacqueline at 4:08 PM on December 27, 2008

i've been contracting for almost 20 years in the federal sector & i've worked for close to a dozen different companies in that time. they all work this way. i call it 'salaried at the whim of the employer.' it sucks, but it's legal (within the exempt/non exempt guidelines gjc provided).

most of what they're interested in is billing your time because your billable time = profit (both for you & for the company). and while the managers who are assessing the exempt/non exempt issue may not be accountants, lawyers, or have any qualifications ... to carry this out, you can bet they have a lawyer somewhere who's going to bless their decision. those federal contracts are too much $ to throw away over a stupid mistake.
posted by msconduct at 4:38 PM on December 27, 2008

Contact the nice folks at the U.S. Department of Labor, Hour and Wage Division. Here's their very handy phone number: 1-866-4-USWAGE. Try and get as many of your fellow employees as you can to call. The more complaints, the more likely they are to do something. Also, google the "Fair Labor Standards Act" + attorney + your city and see if you can find an attorney who specializes in wage and hour violations. There are attorneys who do nothing else but handle these types of cases and they may be willing to take it on contingency. Good Luck.
posted by bananafish at 9:08 AM on December 30, 2008