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 »

“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 »

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.

Question: Hi, Alan. I appreciate your newsletter and thank you for your helpful insights.

I’ve begun working as a caregiver, registered with an agency that provides services to the elderly. Each month the agency gives me a proposed work schedule for the weeks ahead, and asks me to confirm and lock up my availability. I block off my calendar accordingly.

What happens, instead, though are frequent, turn-on-a-dime changes and cancellations to care-giving assignments, often without 24 – or even 12 – hour notice.

There is no language in our agreement about paying me for scheduled but aborted shifts, even though I know that the clients are billed if they don’t give the agency 24 hours notice about changes.

Is this standard? What can I do?

Nina
Novato, California

Answer: Dear Nina, Thanks for the note of appreciation. With me, “flattery will get you everywhere.” Here are my best thoughts:

1. Your new situation just does not seem quite right to me, and appears to be a matter of either (a) deliberate design, or (b) inadvertence. That is, your agency either (a) “has a good thing going” by charging clients but not paying you, in a deliberate fashion, or (b) is in a state of confusion where “the right hand (Collections Dept.) does not know what the left hand (Payroll Dept.) is doing.” Never underestimate the propensity of organizations to be and act in a confused and uncoordinated manner. But also never underestimate the power of greed.

2. While I almost always counsel people to raise issues of concern in a forthright and respectful fashion, in this situation I feel I should first caution you that doing so might pose certain risks to you. According to your note, you are new on this job, and I don’t know if you have as yet had an opportunity to show how much you are a valuable, contributing and. critical part of the agency’s caregiver team. In the event you raise this issue with the agency, it is my guess that you might just – without intending to do so – be raising a “red flag” of sorts, which could result in a termination of your relation to the agency, though you have done nothing to deserve that.

I feel it is necessary to share this concern with you for a number of reasons, including the following:

(a) to hide a potentially fraudulent practice, if the agency you work for is a recipient of public monies – state and/or federal funds – whose regulations may make their “collecting but not paying” an illegal practice, you could face retaliation;

(b) to prevent other employees from raising the same concern, the agency you work for might view the agency’s “collect but don’t pay” practice to be a very valuable part of their profitability, and fear that you might upset that if you share your concern with others, they might terminate you;

(c) just to make more money, the agency you work for might decide to give more assignments to others, and less to you if you have a right to get paid for “no shows.”

There are other reasons, too, to be concerned about potential repercussions and/or retaliation from raising this concern, even in the most forthright and respectful fashion.

3. In legal analysis, if the “expressed words” of your agreement are silent, then you are permitted to look to “extrinsic” matters such as (a) what may be required by California or Federal law, (b) what may be implied from the words expressed, (c) what may be the “industry standard” in this regard, (d) what may be reasonable to imply from the circumstances, and (e) what may be “right and fair.” Legally speaking, the words of your agreement must be viewed first. Read your agreement over carefully – word for word, and punctuation mark for punctuation mark – first. That is what Judges call “The four corners of the document.” If the agreement is truly silent on the issue at hand, then you are free to consider these other “extrinsic” sources for an understanding of “what should be.”

I am not licensed to practice law in California, so I can’t opine as to its state laws. That said, I know of no California or Federal law that would mandate that you get paid for cancelled appointments, if your agreement with your agency does not say you should be. That said, it would likely be a fraudulent practice if your agency was reporting to California or Federal agencies that was paying you for these sessions, when in fact they were not.

Also, after having spoken with several professionals in this general area of business, none told me that there is an “industry standard” practice of paying, or not paying, for cancelled appointments, but rather that it is an agency-by-agency decision.

I urge any and all of our SkloverWorkingWisdom™ blog visitors with knowledge of any such industry standard practice to let us know their view.

4. There is a good potential argument to be made that your written agreement addresses the “sale of your time,” and not necessarily the “sale of your services,” and thus calls for you to get paid whether or not the client shows up. Imagine, for the moment, that a restaurant employs a waiter for $15 per hour, and that one night no customers show up for dinner. Is the waiter due his $15 per hour? Of course he is, because the waiter’s (written or oral) agreement does not say, “but only if customers show up.” Depending on the precise wording of your agreement, in the “largest picture,” it could be said that you did, in fact, render services even to the clients who did not show up, because you were ready, willing and able to do so, and it was not your doing that they did not show up.

5. With these things in mind, I hope you will seriously consider standing up for yourself and respectfully requesting (a) going forward, to be paid for cancelled appointments if the agency does get paid, (b) looking backward, for those instances in which the agency got paid and you did not, and/or (c) both. If you are reasonably confident that you will not unduly suffer a form of retaliation for doing so, I ask you to consider doing what is surely simple and only right: asking for a “clarification and modification” of your agreement to include payment for cancelled appointments if the agency receives payment.

As with any such request, it must be respectful, explain your reasoning in a calm and non-accusatory fashion, and be transmitted by verifiable means, which means (a) email, (b) overnight delivery service such as UPS or FedEx, (c) Certified Mail, Return Receipt Requested, or (d) two of the above.

For people who want to collect monies due them from their present employers, we offer a Model Letter to Collect Monies Owed You By Your Present Employer, that can be adapted to their own unique facts, events and circumstances. To obtain a copy, just [click here.]

6. If your non-payment is inadvertent, you should receive a good-faith response. If intentional, it may be a bit less good-faith. I never predict the future, other than to say that “It will arrive.” However, I am willing to predict that, if you make a respectful request for payment for cancelled appointments, you will get some sort of response, and for this reason some degree of resolution for your concern. Might it harm you? Yes, but at least you will have the satisfaction of having stood up for yourself. And, should it be the case that you feel confident enough that another agency will hire you – after which you have ensured that you will get paid for late cancelled appointments, you have little if anything to lose.

7. A Lesson Learned: from your experiences, both good and not-so-good, make sure all of your concerns about a new job are adequately addressed in your agreement. It’s almost always easier to prevent a problem than to correct one. An ounce of prevention is worth a pound of cure. Look before you leap. I hope and trust that, now that you are aware of this possible issue in how you are paid, you will raise that issue and insist on clarity about it in the future.

And, of course, I hope that each of our blog readers who are in similar circumstances will protect themselves, too, from inequity or abuse in this way.

And one last thing to bear in mind: when you stand up for yourself at work, you are also standing up for every other employee in the world who is being treated unfairly, improperly, inhumanely and illegally, because you will be raising the level of awareness of employees and employers alike as to how necessary and important it is to “do the right thing” from day one, or suffer the consequences of not doing so for a long, long time to come.

Nina, thanks for writing in, and for being an avid follower of our blogsite. I hope this has been helpful for you, and if so, that you will continue to recommend our blogsite to your friends.

My best to you,
Al Sklover

P.S.: Performance Review coming up? How about a Model Letter to Enhance Your Upcoming Performance Review? It can make a real difference. Just [click here.]

© 2012 Alan L. Sklover, All Rights Reserved.

Question: I find that the company I am working for is using the exempt-from-overtime status of many of its employees to avoid hiring additional employees to handle the abundance of work. Why is it acceptable to expect someone to work 60 to 70 hours a week for 7 years? I feel this is a form of abusive behavior.

If I work on a project, and my estimate to finish a task will be 1000 hours and be completed in 6 months, but the company wants the same work done in a two-month timeframe with the same number of resources, why is it they have all the flexibility to say “Get it done,” and the employees involved are not provided the resources or tools to succeed.

At what point does the overtime work become abusive? Don’t get me wrong – I am not looking for the easy way out, and I have always been a very hard worker, but this environment is beginning to create family and health issues.

Where is the accountability on upper management and the corporation to not abuse the exempt-from-overtime employees? Thanks.

Terry
Wheeling, West Virginia

Answer: Dear Terry: Every now and then a blog visitor asks a question that is so simple, basic and fundamental, it sort of stuns me, and takes me an extra degree of reflection and thought-gathering to answer.  

It reminds me of when my son, Sam, was about 5 years old, he looked at me in puzzlement and earnestly asked me, “Daddy, you always watch the news; why don’t you watch cartoons?” You know something, it took a few minutes to figure out an honest answer. (Like many people my age, I have now actually started to prefer cartoons to the day’s news.) Your question is such a question. Here are my thoughts:   

1. Like most voluntary relations and activities, the employment relation is what you make it, or allow your employer to make of it for you. Whether it is dating, friendship, or being a patron of a restaurant, most associations between people are voluntary. Both “sides” or “partners” can come and go as they wish. Few are involuntary. Employment is voluntary because slavery is outlawed. So, it could be said, your employer is asking for more, more and more hours, with less, less and less resources, because you and other of its employees are allowing it to do so, and not leaving due to the abuse. I know that sounds cold-hearted, but there is at least some truth in it.

2. Many would say, in response, that employment is not voluntary at all, because we all need to feed, house and clothe our families and ourselves. There is real truth to this view, as well unless, that is, your Grandfather invented the cell phone, or something like that, in which case you may not need to work and earn a living. Economic necessity is the daily truth for nearly all of us; work is not “voluntary.”

For this reason, people often feel coerced, without any say or way of standing up for themselves, and surely fearful of losing their jobs if they dare stand up in any fashion. And it is worse in difficult economic times, like those we experience today.

3. Our society and government recognize the “involuntary nature” of employment, and so have set up certain “limits” on how much, and to what degree, an employer can “exploit” or “take advantage of” its employees. As just a few examples, our society has (a) outlawed slavery as cruel and inhumane, (b) outlawed child labor, as not conducive to the education and growth of our children in their more tender years, (c) established minimum wage laws, so that all employees must be paid at least a certain amount of income, and live a certain minimal economic level, and (d) enacted occupational safety laws, so that fewer people get injured on the job. Many other examples exist. So, you see, there are some “limits” on some types of the “abuse” you speak of.

For people like yourself, who are “exempt” from the overtime provisions of state and federal law, these “limits” are more limited, and less effective, when it comes to hours you must work.  

4. Over and above the minimum legal standards set by our government, it is up to employees – either united into unions, or on their own – to “negotiate” a better level of treatment. Historically, labor unions were the primary force advocating for improved conditions and terms of working, on a worldwide basis. The struggles of the labor movement, especially in its early years, raised awareness of what you call the “abusive” nature of the way many employers treated their employees, and brought about the fairer, higher standards we have come to enjoy, including such things as paid sick time and mandatory overtime. Make no mistake about it: the struggles to make the workplace a fairer, more decent and less abusive place required true battles – with many suffering arrest, injury and even death. Fighting for fairness is not easy.

With the number of employees represented by labor unions on the decline, worldwide, it has come to pass that people need to stand up for themselves to make their workplaces fairer, at least for them.

5. Through our blogsite, we are trying to help people do – for themselves – just what you have identified “someone” has to do: make the workplace less abusive and fairer, not by picketing or striking, but by “navigating and negotiating” with employers. I firmly believe no one can help people better than they can help themselves, and in the simple notion that “If you make yourself valuable enough, and then ask for what you are worth, the sky is the limit on how much you can improve the way your employer treats you.” It is a very simple notion, yet for many a difficult concept to comprehend, and incorporate into your daily life. But for those who do “get it,” there is a certain freedom, a kind of exhilaration, and a true “awakening” that is quite exciting.

Teaching people that they can, are allowed, and free to do such “navigation and negotiation” is the first task. Teaching them how to do that is the second task before us. 

6. Dignity is never “given,” but instead must be “taken.” So many people wait for years and years to be treated fairly, and sooner or later just get used to the abuse they suffer. That is a dangerous kind of demoralization. Don’t wait years and years for your employer to be fair to you; instead, start today the process of making it in your employer’s self-interest to be good to you in all the ways you deserve. Mutual self-interest is the “guiding” light of navigation and negotiation between employers and employees. 

But you must, sooner or later, start the process by making yourself valuable and known for your value, and then to be someone who says, literally and figuratively, “I want to be treated in a better way, in terms of hours, compensation, title, benefits, opportunity for advancement, etc.” 

Dignity, freedom and power are, in this way, “taken,” and not “given.” That message, and the ways to achieve what you seek, comprise the essence of what this blogsite is trying to do, worldwide, forever, the “hard” way, but the way that truly works. 

Terry, I hope this makes sense to you. These thoughts are the product of lessons of history, that must be learned again and again by each person and in each generation.   

My best to you,
Al Sklover

P.S.: New! We now offer by digital download to your tablet Mr. Sklover’s classic, “Fired, Downsized, or Laid Off,” the unofficial “bible” of how to negotiate severance. If you would like to obtain a digital copy for your tablet, just [click here].

P.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 ™

© 2012 Alan L. Sklover, All Rights Reserved.