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.]

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