DOL Legal Advice

Discussion in 'Off-Topic' started by Leberbs, Aug 28, 2018.

Submit a complaint to DOL?

  1. Absolutely

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  2. Nah

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  1. Leberbs

    Leberbs SS.org Regular

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    I've contacted the department of labor a few times on this issue and I get slightly different answers on the same subject, but different scenarios. I hope someone with some legal background can chime in.

    So, the company I work for requires a lot of travel. When we travel, they require us not to clock in and notate where we traveled to and from. The first problem with this is they use google maps to get a best estimate of how much time it takes us to get there regardless of traffic, detours, construction, and stops for gas/restroom - we get shorted hours this way.
    Then, they take that estimated travel time and add it back on our checks as regular (or vacation) time at the end of the week. So, as clear as day, I'll have 55+ hours per week of regular time on my check. Overtime starts at 40hrs or am I retarded? (I'm not retarded...)

    I'm totally fine with my 40hrs per week and taking it to the house, but they are requiring 40hrs on the jobsite and the drive time is just a "bonus".

    I can submit an anonymous complaint with the DOL and start an investigation, but I want to make 100% sure that what's going on is illegal. We aren't Union. So, it makes it a little tougher.
     
  2. jaxadam

    jaxadam SS.org Regular

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    Take a look at the Portal-to-Portal act.

    https://content.next.westlaw.com/Do...ntextData=(sc.Default)&transitionType=Default

    Also see if this helps.

    https://www.employmentlawhandbook.com/flsa/when-an-employer-must-pay-for-travel-time-under-the-flsa/

    There should be an employee handbook that you agree to upon terms of employment. The policies and procedures laid out in that would be the basis of the agreement of your terms of employment and if your job includes travel there's bound to be a discussion somewhere about it.

    Your employer using google maps is a fair and common technique; it is an objective tool that denotes analytically how long a trip should take, as some employees may take detours, extended breaks, etc. and this would or should be written down somewhere. Also, I believe the time added in for travel is not considered in overtime unless that travel is pertinent to one's job description (i.e courier or runner, delivery, etc.).
     
  3. bostjan

    bostjan MicroMetal Contributor

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    *I am not an attorney and I do not provide legal advise to people - this is simply a conversation between peers*

    *Everything said here is for entertainment purposes only - this is not legal advice*

    According to the FLSA:

    So, clearly, if you are being paid for travel time, that travel time is eligible to be paid as overtime. I don't think there is any gray area around that.

    I am not going to advise you what to do, but if it were my job, I would politely point that out to HR and maybe even hand them a few pdfs:

    https://www.dol.gov/whd/regs/compliance/whdfs23.pdf

    https://www.dol.gov/whd/regs/compliance/whdfs22.pdf

    along with the above quote and link.

    *not legal advice*

    If they were to balk or insist that travel time is not to be paid as overtime, then I would file a complaint.

    As far as the means by which your employer is calculating your travel time, there is a sort of gray area there, but it's probably not what your employer thinks it is. Time paid for travel is time from office to office. If you leave your home and travel to a job site, you are only entitled to the time it would take you to travel from the office to the job site, not the time it would take to travel from your home to the job site. Most field jobs pay according to that standard, which can benefit the field employee whenever the job site is further from the office than it is from their home, but usually averages out to neither do benefit nor disadvantage. If your employer lodges you somewhere near the job site, and you choose to drive home instead, that is also a sort of gray area, but it's for the same reason - you drove home, not to the office.

    This should have no relation to whether or not time already determined to be travel time should count as overtime or not.

    *not legal advice*

    On the other hand, if you are leaving the office and going to a job site, and they are paying you based on the travel time calculated by google, then there are a few things that would make me feel icky about that. According to the FLSA, any time you spend on the clock at the benefit of your employer is work time, unless you are driving to or from home. Your employer might not have a time sheet to document the actual time spent. Are you documenting it? If not, then your employer might be able to prove in court that they are doing their best to document the correct amount of time to be compensated. But...if you are documenting your time traveling and submitting those time sheets to your employer, and they are categorically ignoring those, then you might have a case, again, not that you would even want this sort of thing to go to court.

    Suing your employer is almost never good for your career at the company. :lol: So, if you can reason with them, and they come around and want to make things right for you, then that's pretty much a home run. Almost invariably, in my experience, there's going to be some resistance, but if you approach HR with a calm demeanor and provide them with documentation of the law, as disagreements come up, things might go roughly but smooth out. And, ultimately, if your employer is ripping you off, and you approach HR respectfully to clarify their policies, or even to point out a discrepancy between labour law and handbook policy, and they retaliate in any way, then you might have a rough road ahead, but generally what you are doing is still in your best interest, since you probably don't want to work for a company that is promoting illegal swindling of their own employees.

    Best of luck!

    *not legal advice*
     
  4. Ordacleaphobia

    Ordacleaphobia Can only power chord

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    Bolded for emphasis. How big of a deal is this to you? If you like your job, I would roll over and take it, because once you start getting paperwork involved; even if you win, they're going to make you wish you just quit.

    I work at an HR/Payroll company, and we see stuff like this all of the time. It's astounding how many employers violate wage and hour laws. But it's for ^this^ reason, nobody really seems to care all that much. I'm sorry I can't help you that much since we're a CA based company and don't have any clients in Louisiana, so I'm not versed in your state W&H regulations. I know here in Cali though, that drive time is subject to overtime. Does your company use a payroll provider, or do they do it all in-house? If you're paid through a payroll service, try contacting them. They'll tell you (maybe not enthusiastically, since they don't want to throw your boss under the bus, but they won't lie to you) if everything checks out on the wage and hour front.

    In any case though, unless you hate your job and want out anyway, I wouldn't advise stirring the pot too much. Talk to HR, talk to your boss, ask them to explain it to you rather than accusing them. Follow up on what they tell you and make sure it checks out. A lot of people that we onboard are violating wage and hour regulations left and right simply because they don't know they're doing anything wrong. Very good chance your boss or whoever writes the policy may not be as familiar with the law as you think and it could all be unintentional.
     
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  5. jaxadam

    jaxadam SS.org Regular

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    This. This is the best advice you'll get in this thread.
     
  6. Drew

    Drew Forum MVP

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    Lots of good advice already presented here - the only thing I'll add in the "don't sue if you like it there otherwise" camp is, as I read, you're getting paid for your normal 40-hour workweek, AND you're getting paid for travel, it's just more a question of should it be overtime pay or not, if I follow right...?

    I have a feeling we work in very different industries, but I work somewhere between 40-50 hours most weeks, with some quarterly variation, and commute maybe an hour and a half a day. I WISH I got paid for my commute. :lol: I'm salaried and don't have much to complain about, at the end of the day, but while it's possible that pay should be overtime-eligible, bigger picture the fact they're paying you hourly for travel isn't bad. :yesway:
     
  7. MaxOfMetal

    MaxOfMetal Likes trem wankery. Super Moderator

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    Outside the advice already offered, be sure to document everything. Everything you communicate to them, and everything they communicate to you. Be sure to save it all too.
     
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  8. bostjan

    bostjan MicroMetal Contributor

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    Don't save your work emails on your work computer! :lol: Might be obvious, but I've heard of cases where the employee backed everything up on their workstation, and then once they were fired it got deleted.

    I knew a guy who printed every email and took it home. I guess he had a five drawer filing cabinet at home full of emails. Sounds silly, but in his position, he had a lot of people trying to get him fired.
     
  9. MaxOfMetal

    MaxOfMetal Likes trem wankery. Super Moderator

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    I've been a union steward at my current job for about 5 years now, and I have an entire file cabinet at the hall full of printed out emails.

    It seems silly to go that far, but I've gotten workers reinstated and well compensated many times just by having proof.
     
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  10. Leberbs

    Leberbs SS.org Regular

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    Well, I'll tell you guys what has happened so far.
    HR already told me how legal this was and if overtime was to be included with drive time, its perfectly legal for them to pay us minimum wage for all drive time.
    The owners told me one employee came in with lawyers trying to get them to make it right. Basically the lawyers just backed off the situation and nothing happened.
    Other employees told me the company lawyers came in and laid it all out for everyone.

    No governing body has come in to set everything straight yet though. That's what I'm thinking about putting into play.
     
  11. MaxOfMetal

    MaxOfMetal Likes trem wankery. Super Moderator

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    Did they explain anything or was it just a blanket "it's legal because we said so"?

    This smells.

    -HR was ambiguous and coming at you with the "we could pay less" angle.
    -Owners are pulling the "someone tried and failed" card.
    -Bringing in thier lawyers over this seems like overkill. Who does that when they're right?

    These are all shitty tactics I've seen at places who fuck thier employees.

    Definitely seek a legal professional in your state for some advice. I'm not saying that you should sue, or that your employer is for sure wrong, but they certainly aren't acting like everything is above board, and if it is, they seem awful to work for.
     
  12. bostjan

    bostjan MicroMetal Contributor

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    *not legal advice*

    So, they are saying that they could be paying you all minimum wage instead of what you deserve? Or are they saying that they'd pay you your normal wage, but for travel, you'd be paid minimum wage?

    But if they pay you minimum wage for travel, and you travel for 8 hours on Monday, and then do your normal job Tuesday through Friday, and rack up more than 40 hours, they still have to pay you (by FLSA - which is a federal law) overtime at the rate of your normal job. They can't pick and choose which hours are overtime. :nuts:

    And if they are just going to pay everyone minimum wage all of the time, then good luck to them finding anyone willing to work there.

    Again, just my personal opinion, but it sounds like this employer is horseshit and maybe you need a better job.

    *not legal advice*

    The biggest problem is that they can't go on just making up the rules as they go to benefit the employer financially at the detriment of their employees. The big lawyers might be intimidating, but, in court, there is right and there is not right. If the employer is not right, big lawyers might help them out, but it's certainly not a guarantee that they'd win a lawsuit.

    If I were an employee there, and I got fired for whatever reason, I would certainly look into going on that crusade. But again, in your shoes, it's a tough spot. If you push it, you'll likely lose your job, and if you don't, you'll likely get pushed over by them. Maybe the best course of action is to line up another job with an employer who isn't a P.o.S. and then, in the mean time, document everything.

    *not legal advice*
     
  13. Drew

    Drew Forum MVP

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    Do you have a contract with this company, and if so, does your contract specifically state that travel time is paid? If you do, and it doesn't specifically say that you're paid at your hourly rate for estimated travel time, I'd be careful about pushing on this - if there's no reason they can't just decide not to pay you for travel time as a way to resolve this issue, then that might be the most likely outcome.

    On the other hand, if you have an employment contract, and it specifically lays out that travel time IS paid, and is included in your hourly comp, then you're in a much stronger position. Doubly so if the contract specifies actual travel time and they've been paying you estimated, though I think that's not really likely. If the contract states that you will be paid estimated travel time at your normal hourly rate, but that time is not included in overtime calculations, well, that might violate the law bostjan has mentioned, but at the same time the actual employment contract may take priority in a courtroom, and if you've signed an agreement to accept travel time as not eligible for OT, it gets a little less certain.
     
  14. Leberbs

    Leberbs SS.org Regular

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    Yes, for travel they would pay minimum wage for travel time.
    I agree with your last statement of the quote.

    Check the picture I attached and you tell me what you think. I travel 53 miles to the jobsite and 53miles to my house everyday in their company truck. They have an office like 10miles from my house and work in town(which I'm trying to jump on), but they always want me 53miles in the other direction...
    Capture.JPG
     
  15. Drew

    Drew Forum MVP

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    Ok, so that's tricky. Your contract, which you signed, specifically does exempt travel time from overtime calculations. Whether or not that's legal under federal laws, it's an employment agreement that you agreed to. I think you do need someone with some knowledge of precedent in overtime-related legal matters to know which trumps, federal law, or the actual contract you signed. Because that's kind of the crux of the matter here, and a couple good-meaning dudes on an internet forum probably are't going to be able to answer that one for you.

    EDIT - google suggests that a contract does NOT trump FLSA, and that agreeing to accept regular wages for travel rather than overtime probably would fall afoul of FLSA.

    https://www.wesselssherman.com/Arti...Ask-An-Employee-To-Give-Up-Overtime-Pay.shtml

    I'd want a professional opinion on that, though, and clearly suing one's employer isn't something I'd do lightly, and win or lose I'd be looking for a new job.
     
    Last edited: Aug 28, 2018
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  16. Leberbs

    Leberbs SS.org Regular

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    It is a shitshow here. I like to think I'm a professional at what I do - not just another number or a cable monkey that knows a thing or 2 about cameras. Everything about this joint is definitely deceiving, even in the interview. I'm trying to implement practices and procedures for surveillance and I'm told to "suck it up, sir". Excuse me?

    They did all the above man. Everytime they change some procedure and I inquire about it (thinking I'm trusted), I get the very stern "why don't you just do what you're supposed to do?" - HR.
    Like, wtf?
     
  17. Leberbs

    Leberbs SS.org Regular

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    I do not want to sue, but I want to make it right. The department of labor said that if found guilty of the things we're discussing on this forum, the company will have to cough up all the overtime the employees were cheated out of for the last 2-3yrs. I guess the DOL would keep tabs on them after the fact? idk

    Edit - found guilty under DOL investigation...Not in court.
     
    Last edited: Aug 28, 2018
  18. tedtan

    tedtan SS.org Regular

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    Louisiana law is based on French law rather than English law like the rest of the country, so you need someone familiar with Louisiana law as well as federal law to help with this. I suggest you consult a local attorney specializing in labor law (the consultation is often free), as this could be a bit tricky.
     
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  19. jaxadam

    jaxadam SS.org Regular

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    I don't get paid overtime for browsing ss.org. I have brought this up to HR multiple times, but they just keep throttling my connection.
     
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  20. bostjan

    bostjan MicroMetal Contributor

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    *not legal advice*

    Man, that seems like that doesn't jive at all with federal law. @tedtan has a good point, though, in local courts, if there is no local or state law to support your side of the case, the judge might go completely against federal law, even if the federal government dictates that the federal law supersedes any state and local laws...

    *not legal advice*

    The whole thing can get really sticky. It sounds like these folks in the HR department have already started to build a seawall against anyone trying to push back on these policies, so I'm sure they've already spent more time looking into it than you and I have.

    But then again, they don't seem to be very highly thoughtful about these things. It'd probably be in their best interest to just obey the federal laws, in the long run...

    *not legal advice*

    Jokes on them, it just takes longer for all of the NGD photos to load now, so you have to log more hours in. :lol:
     
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