Who can help us figure out if our employer is breaking the law?
June 5, 2014 3:03 PM   Subscribe

I think my coworkers and I are getting screwed over by our non-profit employer. I am not sure how to confirm this or what to do about it. Any ideas?

We are in Virginia. We work in the social services sector and our program gets funding per client we serve.

So, they have slowly over the last year increased the number of clients we serve (presumably to get more funding). We are swamped and have brought this to the supervisors several times.

First of all, we are not providing the services we should be providing. Our clients are not being served properly. Everything gets done, but rushed or in a less than ideal way.

Second, we have to work crazy hours. We are all "exempt" which apparently means they can just increase the amount of work we have to do until we end up sleeping in the office. I read you are supposed to be a supervisor to be exempt. None of us supervises anyone. I make 25k a year and most of my coworkers make similar salaries.

Third, we were told we can do "comp time" as long as it's in the same pay period. So we are like Cinderella every two weeks, because of course we can't get our shit done because the reason we were working overtime is that there is too much work so comp time is out of the question and then the 2 week pay period ends and we gave them our time for free. I personally am super demanding about my comp time (my duties have some scheduling flexibility), but I am the only lucky one. All my coworkers have such jobs that they cannot EVER take comp time. They work 12 hour days almost every day and they also have to do some duties that involve going to the airport in the middle of the night. This is besides the 12 hour days. So I would say they have worked at least 60 hour weeks every week for the last 2 years at least without seeing 1 cent.

Finally, they tell us to write our time sheets as if there was no overtime. Which feels fishy.
posted by anonymous to Work & Money (20 answers total) 1 user marked this as a favorite
You are clearly being taken advantage of by management. Regardless of whether you can file a grievance with one of the relevant regulatory bodies (and you very well may), you always have the right to bargain collectively with your coworkers as union. This is a good summary of your legal rights.

I have friends who have organized unions in non-profits who'd be happy to talk it over with you. I'm organizing in a for-profit company whose clients are primarily non-profit, and such work conditions are distressingly common. I'd be happy to put you in touch (wobblydeveloper@gmail.com).

You deserve better and your clients deserve better, and as you say, mistreatment of workers ultimately undermines the services they receive.
posted by wobdev at 3:13 PM on June 5, 2014 [5 favorites]

I read you are supposed to be a supervisor to be exempt.

That's false. As a general rule (note there are exceptions to this), most salaried workers are exempt. And again, as a general rule, in most cases that means they can require you to work 60 or 80 or 100 hour weeks and not pay you more (and not give you comp time). Though if you have contracts that say you get certain things, that is legally binding on top of what the law says.

Your recourse is, basically, to get a new job. Nonprofits are in some ways notorious for terribly low salaries and working their employees to death, because they can rely on you being emotionally invested in the people or causes you serve. If you're a low-level employee in a giant corporation, there's more leeway to just say fuck it and leave at 6pm.

Something you can do is to get together with the group of you who are affected, and just decide not to do it. Work 9 or 10 hour days. Leave when that time is over. If stuff doesn't get done, then stuff doesn't get done, and your company will have to deal with that. Ideally, they deal with it by hiring more people. Optionally, they deal with it by firing some or all of you.

Get a new job.
posted by brainmouse at 3:13 PM on June 5, 2014 [14 favorites]

Sounds more or less like many, many non-profits. Maybe most.

One clarification is that exempt certainly does not have to be a supervisor. Exempt basically just means salaried, where you are exempt from getting paid overtime. Do NPOs (and many businesses for that matter) use the lure of the comfort and security of exempt status to exploit labor from their workers? Yes. Is there anything to be done? Not really.

The comp time within the same pay period is pretty bog standard as well. Everything getting rushed and not performed in an ideal way is the social services way.

I think your options are either try to have a come to Jesus moment with your management and either ask them for reduced case loads (which would mean hiring additional employees, which they probably don't want to do) or a raise, or start looking for a new job.
posted by Lutoslawski at 3:14 PM on June 5, 2014

Regarding the wage/hour grievance, this is the office you should contact.
posted by wobdev at 3:16 PM on June 5, 2014 [4 favorites]

Get a new job.

Every bad job is someone's best option, even if it isn't yours right now. Staying and fighting improves the situation of working people in general, which is in your long term interest regardless of industry.
posted by wobdev at 3:17 PM on June 5, 2014 [11 favorites]

I think brainmouse is spot-on in suggesting an organized walk-out though. And I don't mean to sound like leaving is unethical - self-sacrifice isn't a virtue. Just saying this is an opportunity to change the industry for the better.
posted by wobdev at 3:25 PM on June 5, 2014

As a general rule (note there are exceptions to this), most salaried workers are exempt.

This is not true, and if OP is actually making only $25K they may be below the level where *nobody* is exempt. Exemption also applies to the nature of the work being done.

This isn't 'Nam, there are rules, and if your employer isn't meeting them you and your coworkers may be entitled to back pay, penalties and interest. You should be able to get a free consult with an employment lawyer in person or over the phone and they should be able to run through the issues and questions fairly quickly to figure out where you might stand.
posted by rhizome at 3:29 PM on June 5, 2014 [10 favorites]

With few exceptions, to be exempt an employee must (a) be paid at least $23,600 per year ($455 per week), and (b) be paid on a salary basis, and also (c) perform exempt job duties.

An exempt employee has virtually "no rights at all" under the FLSA overtime rules. About all an exempt employee is entitled to under the FLSA is to receive the full amount of the base salary in any work period during which s/he performs any work (less any permissible deductions). Nothing in the FLSA prohibits an employer from requiring exempt employees to "punch a clock," or work a particular schedule, or "make up" time lost due to absences. Nor does the FLSA limit the amount of work time an employer may require or expect from any employee, on any schedule.

I would hazard a guess that the 25k salary was chosen to ensure that they qualify for exempt status.
posted by Lutoslawski at 3:34 PM on June 5, 2014 [4 favorites]

With few exceptions, to be exempt an employee must (a) be paid at least $23,600 per year ($455 per week), and (b) be paid on a salary basis, and also (c) perform exempt job duties.

Many nonprofits are sneaky about the "perform exempt job duties" part of this list in order to avoid paying overtime. The definition of "exempt job duties" is sufficiently vague that the best way to get advice is to probably first consult with the DOL office that wobdev linked to. I agree that the quickest way to improve your own personal situation is probably to try to find a new job.
posted by AndrewInDC at 3:48 PM on June 5, 2014 [1 favorite]

Regarding "overtime," you don't get overtime if you're exempt. They're probably only having you fill out time sheets because you're a nonprofit and they may have some kind of tracking. Your employer sounds like they are treating you like shit but it is probably not illegal.

The only illegality might be if you are providing services that you're not authorized to provide. Hard to say since you were (understandably) vague.

I read a lot of Ask a Manager, and so many people write her to ask "is this legal?" Unfortunately, most shitty employer behavior is unethical but not illegal.
posted by radioamy at 3:55 PM on June 5, 2014 [1 favorite]

I feel the bulk of this question has already been answered. In short, no, it is not likely your employer is doing anything illegal. Your job duties must meet one of the allowable exemptions in FLSA for you to be exempt, but without knowing too much about your job, I suspect you are exempt via the administrative or professional exemption. If you are exempt, your employer doesn't even need you to fill out a time sheet, so how you fill it out is up to your employer's policies.

I wanted to add something that has not been addressed before. It doesn't matter if your employer is violating the law. It only matters if you are willing to do something about it. Ask yourself what you'd do if you did find out your employer was violating the law. Here are the actions I can think of:
  1. Complain to the Department of Labor or equivalent government administrative body. It is likely that they will do nothing about it, because enforcement of labor laws is woefully underfunded. If they do something about it, it is likely your name will end up attached to the complaint one way or another, and your employer will not be very happy about it.
  2. Sue your employer. You may even win. You may receive some amount of back pay, but then your employer will likely fire you. It doesn't really matter if the firing is illegal. They will do so anyway, forcing you to go to court to defend yourself. You will either end up in a protracted (and expensive) legal battle or else you will give up. In both of those outcomes, you will become unemployable in the future, as employers don't like potential employees that have a history of litigation. The risk of that potential employee suing in the future is too great for the employer to bear.
  3. You find a new job. Although this is a huge pain, you will retain your employability, and you may even get a raise.
I'll let you figure out which option I suggest.
posted by saeculorum at 3:55 PM on June 5, 2014 [3 favorites]

If you're an exempt employee you are not eligible for overtime. It's generally a status associated with high-salary employees who aren't given a set schedule and whom can expect to put in 30-60+ hours a week - hence, exempt from overtime because sometimes they get to leave early, and sometimes they need to stay late.

Sadly, many companies use the status to prevent employees with set schedules from collecting overtime even as they are expected to work it.

It CAN be illegal, but it may not be illegal in your specific case. One of the determinations of legality is how much you're being paid. To be exempt you must be paid at least 23k. You must also be paid on a salary basis (ie: not hourly - paid the same amount each pay period regardless of actual hours worked/missed and/or quality/quantity). And you must perform job duties generally associated with exempt employees ('job duties' being very vaguely defined by the law).

Unless your employer is docking your pay in some way (ie: paying less for days missed or for any reason, really), which would then make you a non-salaried employee, it appears that in your situation, your employer is acting legally. Of course, that doesn't make it right. I've been told that non-profits tend to burn people out very quickly because of lower pay (compared to the for-profit sector), high workload (because of the high turnover) and lack of mobility/advancement (from entry-level jobs). You could try to rally your co-workers and fight for improvements as a united force - a dubious prospect since they're acting within the law. Or you could move on and find another employer. I know that's easier said than done, but IMHO your options are limited.
posted by stubbehtail at 4:27 PM on June 5, 2014

Finally, they tell us to write our time sheets as if there was no overtime. Which feels fishy.

Stop doing that. This means someone wants to pretend you are not doing working as much as you are.

This may have nothing to do with the law, but it has to do with something, or they wouldn't be asking you to lie. Maybe your boss is showing this to the board to prove you are not being overworked. Maybe this is being used to prove to your funders you have the capacity to take on more clients. Who knows.

... But someone is using this to cover up the amount you are actually working. Refusing to lie for your employer might at least shed some light on the situation.
posted by _Silky_ at 4:53 PM on June 5, 2014 [9 favorites]

The key to the Administrative and Professional exemptions lie not with how much you're paid but how much "discretion and independent judgement with respect to matters of significance" you have in the exercise of your daily work tasks. The more you are required to have management approval for your decisions, the more likely you are to be non-exempt from FLSA. There's a really good examples about what kind of tasks illustrate "discretion and judgement" here.

Another key would be how they handle absences. While they are allowed to deduct hours from any Paid Time Off benefit you may enjoy, if you have no PTO benefit, or have exhausted it, they are not allowed to dock your salary for the hours missed. Sure, they can counsel/terminate you for attendance problems, but they still have to pay exempt employees their full salary for the pay week.

What I find most interesting, however, is the employer directing you to falsify time records; if they believed you truly exempt, it shouldn't matter how many hours you report each day. A cynical person might believe this direction is to minimize their liability for back pay, should the NLRB find that you and your coworkers are, indeed, non-exempt and owed for all those hours you've worked over 40/week.

As to what to do, contact a local lawfirm/lawyer specializing in Labor Law -- from the employee's perspective, not the employer -- tell them just what you told us and they'll let you know if you could have a case or not. Most of these bleeding heart pro-Labor types will listen to your story without charging you a fee.
posted by workerunit at 5:12 PM on June 5, 2014 [5 favorites]

Gotta agree very strongly with the folks telling you to stop falsifying your time sheets: ALL of you, not just you personally, should immediately start handing in honest sheets that reflect ALL of the hours you have each worked. And I'll go farther: MAKE A COPY of your time sheet (before you turn it in to the bosses) for your personal files, and store those copies OFF THE PREMISES.

And yes, consult with an employment attorney.
posted by easily confused at 5:41 PM on June 5, 2014 [9 favorites]

What is up with the non profit hate? I've worked at several non profits that have carefully adhered to all payroll laws and where most people worked nice 40 hour work weeks.

OP -- you do not need to change sectors to find a job with manageable hours. I would do that first.

Then I'd google "[your city] employment law clinic" to find lawyers who specialize in figuring this out on behalf of lower income clients. In the meantime, document everything.
posted by salvia at 6:00 PM on June 5, 2014 [1 favorite]

"they can just increase the amount of work we have to do until we end up sleeping in the office"

What if the next time they increased the work, it just didn't get done?
posted by sarah_pdx at 6:07 PM on June 5, 2014 [8 favorites]

Companies routinely get fined and have to pay out back pay when state employment commissions conduct their audits. I've been through a couple of them with mixed results. They're annoying, but they keep employers on their toes (which is where they should be, IMO).

I agree with the people advising you to stop falsifying your timesheets, and I highly recommend you talk to your state's version of an employment commission. If they don't know about it, they can't do anything. I'm sure you can remain anonymous, if that's a concern. In my experience, they refuse to confirm that a complaint triggered the audit, so the argument can always be made that it was a random audit.
posted by nobejen at 7:39 PM on June 5, 2014 [1 favorite]

Just anecdotally, I've been through a Department of Labor audit at a former job, when it was alleged that a certain class of employees were considered by the employer to be exempt when the majority of their work was non-exempt. The issue was that they spent their time processing paperwork according to prescribed rules, not making independent judgements. The outcome was that those certain employees were deemed to be exempt, but another class of employees who had caught the DOL auditor's attention were deemed to be non-exempt. My employer had to pay back overtime wages for two years.

It was never explicitly stated who made the complaint that triggered the audit, but we all knew who it was - the guy who had recently quit who was constantly complaining about his workload. My point is, the DOL won't necessarily let on that you made a complaint, but it might not be too difficult for your employer to figure it out.

In your situation, I'm also mostly concerned about the falsified time sheets. Stop doing that. In a situation like the one I described above, you need to have documented the hours that you've been working if you decide to seek remedy.
posted by donajo at 8:19 PM on June 5, 2014

I'm going to try another tack. These people you serve, are they getting properly served? I would imagine that the funding source has all sorts of requirements from the number of hours spent with an individual to the number of individuals any one employee may service. Your boss may be cutting corners. If so this will be your most powerful argument.
posted by Gungho at 8:32 AM on June 6, 2014 [2 favorites]

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