Overtime, Commissions and Unpaid Wages Archives

“I am working way too many hours!! Any ideas??”

Published on October 14th, 2014 by Alan Sklover

Question: Dear Alan: I have been working for my company for three years and over that time my weekly hours have gone from 40 sometimes up to 75. Without a doubt it is now beginning to negatively affecting me, my health, my family and my sanity.

Do you have any ideas?

Overworked
Cranston, Rhode Island

Answer: Dear Overworked: What you are experiencing is the “new productivity,” which is four people doing the work that nine people used to do. Many hours being required is not generally a violation of law, except in a few occupations where public safety might be affected, such as airplane pilots, truck drivers, emergency room physicians, and coal miners. Here are my thoughts on this all-too-common worldwide problem. Read the rest of this blog post »

“Vacation and Vacation Pay – 50 Frequently Asked Questions”

Published on March 12th, 2014 by Alan L Sklover

“A vacation is what you take when you can no longer take
what you’ve been taking.”

 –       Earl Wilson     

ACTUAL “CASE HISTORIES”: According to the Bible, even God took a day off after creation. And, so, too, every now and then you need a time to rest, relax and recuperate from what you do all day, all week, and all month long. And that is to be expected. 

We receive many questions from our blog visitors about vacation rights and vacation pay. So, in hopes that you are planning a time to recharge your own batteries, and to help you get all of the respite you truly need, we have put together these 50 FAQs about vacation time and vacation pay, and the answers to each. 

LESSON TO LEARN: As it is with every other aspect of the employment relation, it pays to know “the rules” of your workplace related to vacation rights and vacation pay, so that you don’t  unknowingly violate them, but instead follow them, and make sure others follow them, as well, to your best advantage. 

Because so many employers are trying to cut back on pay and benefits wherever and whenever they can, it is more important than ever to know your rights and to be prepared to stand up for  those rights in a smart and effective way.  

HERE ARE OUR 50 “FAQs” ABOUT VACATION AND VACATION PAY: Remember: These are generalized answers, intended to provide generalized understanding, only. Your state law might provide differently.  Read the rest of this blog post »

“How can I get an extension to file a lawsuit on my own?”

Published on December 11th, 2013 by Alan L Sklover

Question: Alan, I have a legal claim and would like to file a lawsuit. However a deadline is soon approaching, and I have not yet hired an attorney.

How can I get an extension of the time to file my lawsuit on my own, that is, without an attorney?

Bonnie
Moncton, Canada

Answer: Dear Bonnie: As you may know, I am not licensed to practice law in Canada, so what I suggest below may not be applicable to you. However, it is applicable to most states and countries in which I have worked with “local attorneys,” and therefore I think it is likely applicable in Canada, as well. 

1. A law that sets a time limit to file a lawsuit is called a “statute of limitations.” In the majority of countries, including Canada, laws specify how long after an “event” or “injury” takes place a person can sue for damages in what is called a “civil” case, or a prosecutor can prosecute the person in what is called a “criminal” case.

 For example, in Canada, for “misdemeanor” or “summary” crimes, which are lesser crimes, there is a six-month criminal statute of limitations. After that period, a defendant can no longer be involuntarily prosecuted. However, for more serious crimes in Canada, there is no statute of limitation. So, for example, for a crime of robbery or rape, a prosecution can be brought even 30 years later. 

In Canada, as in almost all countries, “civil” lawsuits have different “statutes of limitation.” A case for collection of a debt, for example, must be brought within six years. In the U.S., each state sets its own statutes of limitation for different criminal and civil cases. In Canada, statutes of limitation are established by both the federal and the provincial governments. 

To find out the applicable Statute of Limitation for your case, you can probably find it out by conducting an online search engine search, or by contacting your local Court or Tribunal. And, too, an attorney might do you a small favor by looking it up for you.   

2. In a “civil” case, that is, one brought by one person against another, to get an extension of time to file your case, you need to ask the “defendant” to agree to it, in what lawyers call a “Tolling Agreement.” As a general rule, if you want to sue a person or company, and the deadline for doing so is approaching, you have to ask the other person or company to enter into a “Tolling Agreement,” in which both “sides” agree to extend the time period for filing the Complaint.

Sometimes, the parties enter into a Tolling Agreement so that they can have time to speak about settlement of a case without filing in Court. Commonly, the “defendant” against whom a lawsuit is threatened will not agree to do this, unless it is in the defendant’s interests. No  precise form of Tolling Agreement is necessary, but it is important to be clear about (a) the legal claim that is being extended, (b) when the Statute of Limitations is set to expire, and (b) to what date the parties agree to extend it.   

3. However, sometimes laws do not permit Tolling Agreements, or limit their application. For example, in January of 2004, in Ontario, the Statute of Limitations for a breach of contract case was changed from six years to two years, and by that law it was declared that this two-year deadline applies “despite any agreement to vary or exclude it.” Also, in the U.S., after the Equal Employment Opportunity Commission permits a person to sue for discrimination in Federal  Court, that person has just ninety days to do so, and the Courts have said that parties to the lawsuit have no ability to extend that deadline, even if they wish to or have agreed to. 

4. Quite often the smartest thing to do is to quickly file the most minimal papers necessary to start your lawsuit on time, with the help of a Court Clerk, and then later amend your Court papers or have an attorney do so for you. If you are tight on time due to an approaching deadline to file your lawsuit, and you have doubts about whether your adversary will agree to sign a Tolling Agreement, you might travel to the Court and describe your dilemma to the Court Clerk, and request some minimal assistance in filing the necessary papers. This is what I would, indeed, recommend.   

5. Some Courts, like the U.S. Federal Courts, have special Court Clerks called “Pro Se” Clerks, who work full-time for this very purpose. “Pro Se” means “For Yourself,” and I have heard many times of Pro Se Court Clerks showing people in your circumstances an example of a Court  Complaint someone else has filed that you can use as a Model or Sample. In addition, I have heard many times of attorneys who are willing to show “samples” they have filed in the past to people in your situation. Also, many Courts have files online, available to all, and in this way, if your local Court does so, you might see a good sample to follow. 

After your Court filing, and if necessary after “serving” a copy of the Complaint – that is, delivering it to the defendant – you can almost surely later “amend” your Complaint to make it better, or an attorney can do that for you. 

Keep this thought in mind: If you do, at least, file “something” before the applicable legal deadline, you have a better chance of not losing your legal rights than if you just did not file “anything” at all.   

Bonnie, I hope this is helpful to you. Don’t let your legal rights expire. I applaud you for standing up for yourself!! Please consider telling your friends, family and colleagues about our blog – we’d REALLY appreciate that!!

My Best,
Al Sklover

Repairing the World,
One Empowered – and Productive – Employee at a Time™

© 2013, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

“Is there a limit to how many hours I can be required to work?”

Published on May 29th, 2013 by Alan L Sklover

Question: Hi, Alan. I so value your newsletter, and learn a lot from it. Thank you for your words of working wisdom. I haven’t seen the following issue covered yet. 

I work from 9:00 am to 8:00 pm as a caregiver employed by a home health agency in California. I have one weekday off a week, and alternate weekends. My hours are  60 a week. 

My employer has just scheduled a mandatory two-hour meeting, which falls on my one weekday off. Working a 60-hour workweek as I do, I am understandably protective of what little time I have off. 

Can my employer insist I go to this meeting? Is there a limit to how much I can be required to work? With appreciation . . . 

P.S.: I’ve never been paid overtime, even though at times I have worked 24 hours straight.

N.R.
Sacramento, California

Answer: Dear N.R., I think you are correct: I have not addressed this issue before. Believe it or not, for most employees there is no limit on how much – or when – an employer can require they work in order to keep their jobs. However, in California there is a “kind of limit,” that might, in some weeks, apply to you. Here’s what I’ve found:          

1. To my best knowledge, there are just three groups of people who have a legal maximum number of hours they can be required to work: (a) children, (b) unionized workers, and (c) “safety-related” employees, such as airplane pilots, doctors in training, and miners. The U.S. federal law that governs most employment matters, the Fair Labor Standards Act (commonly known as “FLSA”) has no limit on the number of hours an employee can be required to work. California state law, and New York state law, have none either. I know of no other state law that sets a limit. 

(a) Children: That said, every state I know of has a legal maximum number of hours a week that a child can be required to work – in fact, even allowed to work if they want to. For example, under California state law, children aged 12 and 13 cannot be employed on any school day, either before or after school. 14- and 15-year olds can work three hours per school day, for a maximum of 18 hours a week. 16- and 17-year olds can work four hours on a school day and a maximum of 48 hours a week. 

(b) “Safety-related” Occupations: Federal laws also strictly regulate how many hours a day or a week certain occupations can work for safety reasons, including airline pilots and physicians – especially interns and residents in physician training. In other areas of public safety, maximum hours are also regulated by law. For safety reasons, strict regulations exist on the maximum number of hours miners can work in underground mines. 

(c) Collectively Bargained Agreements: Finally, most collective bargaining agreements set limits on the number of hours a unionized employee can be required to work during a work week. 

But for the vast majority of employees, there simply is no limit on the number of hours an employee can be required to work. 

2. California does, though, have a rather unusual law: an employee cannot be “discriminated against, demoted or fired” for refusing to work more than 72 hours in a work week. As you may be aware, I am not licensed to practice law in California. That said, I did a little legal research to answer your inquiry, and found this California law that, to my mind, is quite unusual: 

California Wage Order 4, Section 2(D)(1) provides that employers may not demote, fire or discriminate against employees who refuse to work more than 72 hours in a workweek, unless there is an emergency. What is an “emergency?” Another California law, Labor Code Sections 850 to 854, defines “emergency” as  “any unpredictable or unavoidable event that happens at an unscheduled time and requires immediate action.” 

Thus, while in California there is no limit on the number of hours you can be required to work, it is illegal to fire, demote or discriminate against you if you refuse to work more than 72 hours in a workweek. Since you regularly work “only” 60 hours a week, this may not apply to you. That said, you did mention that at times you have worked 24 hours straight, so in some weeks this law may very well apply to you.    

Note, too, that employees are permitted to “voluntarily” work more than 72 hours in a workweek if they “choose” to do so. Is that “choosing” always really “voluntary?” It is surely hard to say “No” to a “bossy” boss. 

3. In practical reality, it is the Federal overtime law that really serves to limit employees’ workweeks to 40 or so hours. N.R., I bet you did not know it, but the Federal FLSA law, enacted in the 1930’s, was enacted to encourage employers to “spread the jobs around,” and give jobs to more unemployed people instead of giving those who had a job 50, 60 or more hours of work each week. And, in this way, the FLSA remains today the reason most employers do not require employees to work so many hours. 

To learn more about overtime and your rights to collect overtime pay, feel free to review a newsletter I wrote a few years ago entitled “Overtime Pay: 80% of American Employees are Entitled. Are You?” You can do so by simply [clicking here.]  

4. From what you have written, you are quite probably entitled to payment for overtime for all of those hours worked in excess of 40 in a week. I don’t know all of the facts and circumstances of your position, but it seems to me not to be of an executive nature, an administrative nature, or highly paid, which are the three most common characteristics of an “exempt” position. From how you describe your work and how many hours you generally work, it seems to me quite probable that you are entitled to a large payment of overdue overtime.  

Incidentally, if your employer denies you overtime pay “willfully,” and most instances are easily provable to be “willful,” you may be entitled to double the amount you were denied, plus reimbursement of all legal fees.  

5. The FLSA law makes it illegal to retaliate against those who raise their legal rights to overtime. If you do decide to bring the issue of non-payment of overtime pay due you directly to your current employer, you should bear in mind that your doing so may not make your employer especially “pleased.” In fact, your employer may resent your doing so, and may want to “make life difficult” for you in retaliation.

Though, under the FLSA you are legally protected from retaliation in this situation, we all know that employers can be subtle in how and when they “get even.” For this reason, an anonymous letter to your employer, raising the issue of overtime pay about a group of employees of which you are a member, may be wisest. While some people might view anonymous letters as “sneaky,” I wholeheartedly consider them often totally justified, and a matter of carefully protecting yourself and your family when you stand up for your legal rights.

To assist those who are fearful of directly requesting the legal protections available to them, on our blogsite’s Model Letters section, you can obtain a “Model Anonymous Letter to Your Current Employer Requesting Overtime Pay For All.” To obtain a copy, just [click here.] Delivered by Email – Instantly.

You might also consider filing an anonymous complaint with the U.S. Department of Labor, as it is their job to investigate such complaints and, if they find a violation of FLSA, they will usually try to negotiate a resolution without Court action. For information on how to initiate an anonymous overtime complaint to the Wage and Hour Division of the U.S. Department of Labor, go to their website at www.dol.gov.  

The federal FLSA law provides that you have at least two years, and in some instances, three years, to exert you rights to overtime pay. For this reason, you can wait a while to do so, if you wish.  

On our blogsite’s Model Letters section you can obtain a “Model Letter to Your Former Employer Requesting Unpaid Overtime Pay.” To obtain a copy, just [click here.] Delivered by Email – Instantly.

6. Lastly, always bear in mind that no one can, or will, take care of you at work, or protect you and your workplace rights, better than you can or will, yourself. It is the employee, himself or herself, who can “Just Say No” to an employer’s violation of their legal rights, provided he or she is (a) confident in his or her skills and positive work ethic, (b) prepared in all respects to find a new employer who wants or needs those skills and positive work ethic, and (c) has saved up something of a “financial cushion” in case it takes a while to find what my kids call “a better gig.” 

It is our view that this kind of “wise navigating and negotiating” is, in the end, the smartest, most reliable, most effective, and most rewarding way to live your work life, and that is why we encourage it so much. 

N.R., I hope this has been of help to you. Please – from one hard worker to another – make sure you take the time to take care of yourself, and your loved ones, too.    

My Best,
Al Sklover

P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2013 Alan L. Sklover, All Rights Reserved.

Recoupable – Key Words & Phrases

Published on April 19th, 2013 by Alan L Sklover

Key Words

What is the meaning of:

RECOUPABLE”?

Basically, it means “capable of being taken back.”

In the employment context, “recoupable” is most often used in commission plans, bonus plans, or other compensation plans that pay employees according to their success in bringing in business or revenue. The word “recoupable” means that the Employer is permitted, even after payment
of the compensation to the employee, to demand the payment be repaid, or to withhold other monies due the employee if repayment is not made.

Here’s an example: suppose a salesperson earns a 10% commission on sales. Often the employer will provide the salesperson some money “up front” to give him or her a head start on earnings. This is commonly called an “advance against commissions,” or a “bonus advance.” If it should turn out that, after a period of time the employee does not earn all of the “advance” payments, if the “advance” is a “recoupable” advance, then the employee would have to repay the employer the amount not earned.

So, if the advance is $1,000, and the amount actually earned after the designated period of time is only $800, then the extra $200 is recoupable.

Incidentally, the opposite of “recoupable” is “non-recoupable,” which means just the opposite: any “advance” not earned is kept by the employee, and not required to be paid back to the employer.

If you are the recipient of commissions, bonuses, or other compensation, especially compensation based on financial performance, and if you are
entitled to upfront payments, usually called “advances,” make sure you ask “Are these recoupable, or non-Recoupable.” The answer is important to your financial planning and future.

© 2013 Alan L. Sklover. All Rights Reserved. Commercial Use Strictly Prohibited


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

Receive All Our Posts - It's Free!

Monthly Newsletter, Discounts, Events