Is a contract requiring free work illegal?
November 8, 2018 3:40 PM   Subscribe

My union negotiated a contract that requires some employees - not all - to be required or potentially be required to work for free. The union says since it's the contract there's nothing to be done. I say it's a violation of Federal law, which trumps the contract. Who's right, or is there an additional factor I'm overlooking?

Keeping it simple, there are two major groups, say group A and B, of workers in my union. We are salaried (which complicates things, I know). However, in addition to their salaried work, group B is *required* to do job X, and there is additional payment for this work.

Problem is, there is a cap on how much group B can be paid for the *required* additional work, but not a cap on how much additional work can be required of them! So if someone from group B does 1 hour a week of job X they get paid $10 extra each week, on top of their salary. If they do 2 hours they get paid $20 extra. If they do 3 hours they get paid $25 extra. If they do 4 hours they get paid $25 - it caps at $25. And we have people being *required* to work over 10 hours a week on job X - in addition to their normal work - but they are only getting paid the cap of $25. To me that's 7.5 hours of free work a week!

The intricacies of law sometimes confuse me, and I know YANML, but even if group B is salaried, the establishment of an increase of $10/hr for X work means that work X is outside the salaried expectations and not part of that payment plan, and that capping the pay but not capping the hours is an attempt to require unpaid labor correct?

If this is the case, who is more at fault, the employer who is getting free work, or the union? The majority of the union is A members so they don't really understand what's going on - when the employer says they're give us all a raise in salary if they can cap the amount spent on X work the union just hears "all a raise!" and agrees.
posted by Lt. Bunny Wigglesworth to Law & Government (18 answers total) 1 user marked this as a favorite
Just a quick clarification: is group B required only to do some unspecified quantity of job X, such that they could do one hour and then say the contract was fulfilled? Or are they required to do as many hours as are requested?
posted by amtho at 3:46 PM on November 8, 2018

Your state of residence matters for this question. Also, is this a public or private union?

Saying that Group B employees are salaried isn't actually useful information. A salaried employee can still be non-exempt from overtime. Is the nature of Group B's work exempt or non-exempt?

If Group B is exempt from overtime laws, then they are exempt from overtime laws. They can be paid a bonus for working extra hours, just like employers can choose to pay some exempt employees for overtime but not others.

If Group B is not exempt from overtime, then they are not exempt from overtime. At a minimum, they can be paid a salary for the first 40 hours of work in a week, and then anything over that pays time and a half (and then add on top of that any applicable state laws.)
posted by muddgirl at 3:51 PM on November 8, 2018 [1 favorite]

amtho, if I understand your questions correctly, it's a unit of time being required, not a unit of work. So it's not like X is "you need to make 10 widgets" and some people are taking 2 hours while others are taking 10 hours for the same product. Some people are scheduled for 2 hours of X, which they must be on site to perform, and others 10 hours, which they must be on site to perform.
posted by Lt. Bunny Wigglesworth at 3:54 PM on November 8, 2018

My father has this exact type of deal as a software engineer for a defense contractor. He is on salary gets "overtime" for hours 50-60, but nothing more after 60. He also gets paid the same no matter how long he works for hours 1-50, but obviously putting in 1 hour weeks won't happen for very long.

And if Group B is exempt from overtime like muddgirl states, then getting an overtime bonus for a certain amount of hours is likely kosher.
posted by sideshow at 4:08 PM on November 8, 2018

While some states may provide additional protections, under federal law (namely the Fair Labor Standards Act) there is no maximum number of hours for exempt employees. Unlike nonexempt employees, employers are not required to pay exempt employees overtime (even if the duties of the exempt position necessitate long hours).

The FLSA does permit an employer to pay an exempt employee additional compensation without jeopardizing the employee’s exempt status. However, if an employer requires exempt employees to work a certain number of hours and account for their work time on an hourly basis, these employees might be incorrectly classified as exempt employees if the accounting has the effect of treating them like hourly workers. If your employer were found to be incorrectly classifying nonexempt employees as exempt employees, the employer might be liable for the past overtime they should have paid to the incorrectly classified employees.
posted by RichardP at 4:18 PM on November 8, 2018

I guess my question is about whether the contract _states_ that employees must work infinite hours, or that they must work on x without specifying a minimum time. In the latter case, I'm wondering if employees could work up to the maximum pay allowed, then refuse to work beyond that.
posted by amtho at 5:27 PM on November 8, 2018 [1 favorite]

This is a discussion you want to have with an investigator at your state's Dept. of Labor. They'll listen to your story, then tell you how state and federal labor laws apply in this situation. If they believe that a violation is occurring, you can have them formally open an investigation with the employer.

But speaking as a former officer, steward, and negotiator for my Local Union, I'm pretty confident that the union has previously been thoroughly briefed on the legality of this arrangement by their own legal counsel and by the State Dept. of Labor. Because if there was the slightest possibility that the employer's practice violated the law, the union would benefit from forcing them to put a stop to it by reporting it (and if necessary, taking legal action).

People want their money. The union, being made up of the people, want the people to get their money - all of it. There's no benefit to them rolling over on this. Not to mention if they did, and it came out later that they were wrong to go along with it, they'd look like stupid chumps. Trust me, your union leadership doesn't want everyone thinking they're a bunch of stupid chumps.

Still, it's worth that talk with the DoL. I actually filed a grievance against both my union and our employer, charging them with sex discrimination due to a clause in the contract providing paid parental leave only to females. I met with the EEOC, and they agreed with me that it was discriminatory. The employer and the Local argued it was to help women recover from childbirth - but I pointed out it was granted in cases of adoption, too. The male grievant I represented got his paid parental leave, and we got that clause amended in the next contract.
posted by Lunaloon at 5:39 PM on November 8, 2018 [11 favorites]

Yeah, your union leadership would have to be pretty incompetent to agree to a contract that was actually
. Still, sometimes people who you'd think would know better are shockingly incompetent, so it's worth checking in. Gollow Lunasol's advice.
posted by Anticipation Of A New Lover's Arrival, The at 5:45 PM on November 8, 2018 [2 favorites]

the establishment of an increase of $10/hr for X work means that work X is outside the salaried expectations and not part of that payment plan, and that capping the pay but not capping the hours is an attempt to require unpaid labor correct?

This doesn't even make sense, honestly, no. The salaried expectation is that you work and they give you pay. That's it. Hours requirements are a totally separate requirement of the job. They're not paying you $10/hour for work X. They're paying you your salary divided by the total number of hours you work in the week plus $10/hour for certain hours. If they stop paying the $10/hour, they're still paying you the rest of that. Compensation beyond your salary does not invalidate your being an exempt salaried employee. There is no "free work". If you make $60k a year, then you work 60 hours a week, that $60k is spread out over those hours, or $20/hour equivalent. The $10/hour you then get is on top of that and doesn't change that they already paid you your salary for that time.

There is no free work here. There might be other problems with the contract, especially if it works out to being a pay cut over what you make currently, but there's no unpaid labor being required.
posted by Sequence at 7:43 PM on November 8, 2018 [3 favorites]

Still working through the replies, so bear with me...thanks for your help so far

“They’re not paying you $10/hr for work x”. Sequence, it may not make sense, but that is literally what they are doing. The pay for x work is calculated outside the salary and is not a bonus. It literally says our salary is $—- and then it says B workers will be paid $10/hr for x work up to $25 a week. A and B workers have the same base job and same “salary”. Then B workers are paid an additional hourly rate for their additional x work.

Amtho, no, B group workers are not allowed to refuse to do X work, even if it exceeds the pay cap. The contract says we must complete ALL x hours assigned. So some people are assigned 1 hour and paid fully and others are assigned 10 and have to work all ten despite being paid for just 2.5

As far as the union being incompetent vs wanting to be paid - I’m talking about 90% of the union being A group and point blank admitting they don’t understand how B groups pay is calculated. They are absolutely incompetent. They bungle grievances for obvious violations of the contract on the regular.

Thanks for the advice - I will talk to the Dept of Labor.
posted by Lt. Bunny Wigglesworth at 9:33 PM on November 8, 2018

Side note about my unions “legal counsel” - they don’t have one. I’m not joking. We asked them to hire one for the last contract negotiations and they said an outsider wouldn’t understand things as well as they do.

And in terms of getting everyone their money - since A group is bigger the union has admitted they don’t even try to get b group paid fair if the employer dangles a general raise in front of them. They don’t think it’s worth it to negotiate removing a cap for b group if it means a general raise.

And, second side note, since x work is not part of the normal, salaried work, it doesn’t count towards OT calculations, so it triply sucks bc you might have to do 40 of regular work, then 10 of x work, and THEN you can work OT. But A group gets OT as soon as they go past their 40 hours.
posted by Lt. Bunny Wigglesworth at 9:42 PM on November 8, 2018

The pay for x work is calculated outside the salary and is not a bonus.

This is the part I'm saying doesn't make sense, not the arrangement. That's not a thing that exists, getting paid "outside your salary". It doesn't have to say it's a bonus somewhere in that specific terms. They're allowed to pay you money on top of the salary. It's the salary itself that makes you a salary employee, and it's meeting the exemption criteria that makes you exempt. The arrangement you're describing is not that abnormal, except insofar as possibly there's some work-related problems if some people are routinely being expected to do a lot of extra that others aren't.

You're thinking of this as some weird separate thing, and that's what's making this weird. It's not separate. Your salary doesn't pay for only the first bit. Your salary pays for everything they require of you. The extra work is not being paid at a rate of $10/hour for the first 2.5 hours and then nothing. It's being paid *extra* of $10/hour for the first 2.5 hours, and after that you continue to work for your original salary because you never stopped. It might still totally be an unfair arrangement, but it is not an hourly pay problem.
posted by Sequence at 10:14 PM on November 8, 2018 [1 favorite]

Sequence - I think my confusion is, if the x work is just part of the job, then why pay extra for it at all? As for as I have read bonuses tend to be sporadic, or goal- based, not something that happens every paycheck, for regularly scheduled hours. Especially when the cap is so low that requiring you to work 10 or more hours and getting paid the same as a person whose working 2.5 hours only breeds resentment. And just for the record I am NOT a person not being paid, I have just been speaking with them recently and have been heartbroken to see how some people are being required to work almost twice as many hours as others, even though they are supposed to be “equals” within the company.

Furthermore, I have looked at the contracts of six same-type unions in my area and although they have “group b”s as well, none of them specify a different pay rate for x work. They consider “work” “work” (like you say, your job is your job) and 40 hours of work is 40 hours of work, and paid the same regardless of whether it’s x work or not. Someone doing 40 hours of y work gets paid the same as someone doing 35 hours of y work and 5 hours of x - and then overtime begins at the same hour point for them.

I know I’m speaking in generalities which makes it a little more confusing, but yes, it IS actually an unusual arrangement, at least in my area and my line of work, although it may not be illegal (I’m still not sure on that).
posted by Lt. Bunny Wigglesworth at 11:53 PM on November 8, 2018

I Am Not A Lawyer, but I am sometimes a labor union/management negotiator. Our contract had a very limited "free hours" work clause that we had to change because it could reduce the total pay to below state minimum wage. We modified the rule to make sure it does not ever drop below the minimum.

What we learned from this is no union agreement can supersede federal or state minimum wage laws.

Salary complicates things. If the group B workers are paid salary, are exempt from OT, and are "learned professionals" to meet the exempt vs. non-exempt tests, then this gets tricky. If you get paid a salary that is multiples higher than the minimum wage, technically you could be required to work 50-60 hours per week and as long as the equivalent minimum wage with OT is still less than your weekly salary no law is broken.

However, this still is a terrible work rule:

- It makes for a shitty work environment, and potentially hazardous due to fatigue, stress, danger of people falling asleep on the commute home and wrecking their cars (this has happened at one place I worked)

- it destroys the sense of equity and fairness in the workplace and puts doling out the inequity in the hands of management.

Some tactics to take with your union would be: volunteer to become a liaison or member of a negotiating committee for the next round of contract talks, form an ad-hoc committee of group B union members within your union and come up with a list of demands to the current union leadership, find out when and how union officers are elected and put a Group B person up as a candidate for president, clerk, treasurer, whatever, call up employment lawyers and ask if any of them would be willing to do a free consultation or pro-bono review of a labor contract to support organized labor, get their assessment, take it to your union leadership, etc.
posted by sol at 8:38 AM on November 9, 2018 [1 favorite]

My question to you would be, is it mathematically possible for a worker to have hours and receive pay such that their compensation drops below minimum wage for any pay period? If not then this is almost certainly legal. I am not a lawyer.
posted by bq at 12:22 PM on November 9, 2018

Since it sounds like Group B is not exempt, and does normally get overtime, this "extra work" should be "work you get overtime for," if it brings you over 40 hours a week. Whether that OT is based on the standard pay rate, or the $10/hr rate for the weird side job, would be for the laywers to argue over - but there is absolutely no allowance in federal law for "you work 10 hours but only get paid for 2.5 of those hours."

If you have exempt workers, then their pay for the other 7.5 hours is included in their normal salary. But if you normally get overtime pay, you are supposed to get paid for all the hours you work, and any company that tries to say, "but this work is different," is likely to wind up owing those workers massive payouts.

...Definitely talk the DoL.
posted by ErisLordFreedom at 2:22 PM on November 9, 2018

Companies can choose to pay overtime to exempt employees. They can agree in a union contract to higher benefits and protections than provided by the FLSA and state law. But a union contract can't waive guaranteed federal/state rights.
posted by muddgirl at 2:34 PM on November 9, 2018

I don't have a union, but have a similar pay structure. I am paid a salary. I am also occasionally on call for emergencies. I get paid a bonus per hour of oncall, but it caps at $X regardless of how much I work.

Since I am an exempt employee, they don't have to pay me a bonus at all, as far as I know. So the fact that it is capped doesn't mean I am legally entitled to more if I work more hours than the cap (which is outside my control).

So I think bonuses do/can work this way, contrary to your intuition. However as far as I know the big issue is exempt vs non exempt.

I am not a lawyer, however.
posted by thefoxgod at 2:37 PM on November 9, 2018

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