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Greetings,
I am hoping a labor attorney or knowledgeable HR person can assist with
this question. As an exempt professional employee, working in a
managerial capacity in IT, I was originally hired with the expectation
that there would be some overtime to complete projects and to maintain
a stable computing environment. I was given a pager and told that I
needed to carry it and respond to requests. I have never seen any
written policies, though they may exist.
In the last few years, and with the growing online presence we now
maintain, it has become more common for us to have problems at all
hours, including the middle of the night. We have since been given
radio cell phones and there has been an oral statement of expectation
that we will respond to all systems related calls on an immediate basis
and that we should always have our pagers with us and phones at the
ready.
In my mind, this constitutes an expansion of the requirements for our
positions (certainly much more than when I first hired on) without any
discussion of any form of compensation, whether that be a trade of time
or monetary compensation if we have to get up in the middle of the
night to address a need.
Can a state agency (university) decide to continually expand the
requirements for work beyond 40 hours for exempt professional employees
without any discussion of the requirements and written policies?
If yes to the above, the slippery slope would seem to be that if one
agrees to an exempt position (perhaps at a fairly modest state wage
compensation package in the beginning), the employer can start
expanding the time requirements to successfully fulfill the duty and
essentially create an environment and expectation whereby the employee
is on call 24/7 without any benefit or compensation for this
requirement. This seems to slowly be the direction we are headed. Is
there any recourse to being turned into a 24/7 doctor at a state
employee pay rate?
Thanks for any insights.
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"aconite" wrote in misc.legal.moderated:
Can a state agency (university) decide to continually expand the
requirements for work beyond 40 hours for exempt professional employees
without any discussion of the requirements and written policies?
Unless it violates state law or regulations, yes. Call your state's
department of labor.
Are you civil service? If so you may have some protections; talk to
HR or to the civil service department in your state capital. Are
you union? If so, talk to your shop steward.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
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In article <002s11t0acnmdvl0m244egnejppsqgsuv2@4ax.com>,
aconite <mark@sitesolver1.com> wrote:
Greetings,
[[.. muncho grosso -- work duties including more 'after hours' stuff ]]
In my mind, this constitutes an expansion of the requirements for our
positions (certainly much more than when I first hired on) without any
discussion of any form of compensation, whether that be a trade of time
or monetary compensation if we have to get up in the middle of the
night to address a need.
So? You are, in all probability, an "at will" employee -- do you have a
personal contract with the State? Are you covered by a union, or other
collective bargaining agreement? If not, it is almost certain that 'at
will' applies. Which means your employer _can_ change the rules. If you
find the changes "too objectionable", find a different employer.
Can a state agency (university) decide to continually expand the
requirements for work beyond 40 hours for exempt professional employees
without any discussion of the requirements and written policies?
Yup. "exempt professionals" are paid "by the month", or "by the year",
Those _are_ the 'working hours'.
If yes to the above, the slippery slope would seem to be that if one
agrees to an exempt position (perhaps at a fairly modest state wage
compensation package in the beginning), the employer can start
expanding the time requirements to successfully fulfill the duty and
essentially create an environment and expectation whereby the employee
is on call 24/7 without any benefit or compensation for this
requirement. This seems to slowly be the direction we are headed. Is
there any recourse to being turned into a 24/7 doctor at a state
employee pay rate?
Yup. Find work "somewhere else".
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aconite wrote:
[OP is an exempt IT employee for a state agency in TX. Since he
started, his duties have been expanded to include being on call 24/7 to
resolve network/system problems.]
In my mind, this constitutes an expansion of the requirements for our
positions (certainly much more than when I first hired on) without any
discussion of any form of compensation, whether that be a trade of time
or monetary compensation if we have to get up in the middle of the
night to address a need.
Look at it this way: your employer gave you notice, then offered to
rehire you at the same salary with expanded duties. Would that be
legal? Of course. If they wanted, they could fire you and hire
somebody else to do all your old duties plus the new ones, at the same
salary you were paid -- or even at a lower salary if they could find
someone competent at that salary. Only in this case, you are that
"someone".
Can a state agency (university) decide to continually expand the
requirements for work beyond 40 hours for exempt professional employees
without any discussion of the requirements and written policies?
Unless you have an employment contract for a fixed period, or there is
something special in Texas law, they can do this. I'm not aware of
anything in common law or Federal employment law that prohibits giving
an employee additional duties, with or without a raise in salary or even
with a lower salary. (As long as the new salary is high enough to
qualify for exempt status.)
If yes to the above, the slippery slope would seem to be that if one
agrees to an exempt position (perhaps at a fairly modest state wage
compensation package in the beginning), the employer can start
expanding the time requirements to successfully fulfill the duty and
essentially create an environment and expectation whereby the employee
is on call 24/7 without any benefit or compensation for this
requirement. This seems to slowly be the direction we are headed. Is
there any recourse to being turned into a 24/7 doctor at a state
employee pay rate?
Yes, you have recourse. You have the right to quit if you don't like
the terms offered. Feel free to circulate your resume.
There are a few caveats. The time you spend responding to calls counts
as "time worked". So if you spend 3 hours on (say) Monday and Wedensday
nights handling calls, you only need to work 37 hours the rest of the
week to qualify for all your pay (and not have to use up "personal",
"sick", or "vacation" hours). However, if you can't do a decent job at
your other duties in that time, you may get a bad performance review and
then lose your job over that.
All this assumes that you are a standard "at will" employee. If you are
covered by civil service or a union contract, you need to check those
rules -- they may protect you from this sort of thing.
That's the legal part. The practical part is that smart employers will
offer some sort of extra compensation in a situation like this. A
"bonus" for being on call, and sometimes a little extra for each call
you need to answer. The reason is simple: treating your employees like
slaves results in the good ones leaving and only the less competent
staying behind. It's also an encouragement for employees to "forget" to
change the batteries.
This last is a real problem. I needed to carry a pager one week out of
6 (rotating coverage) in the early 90s. Sometimes I wouldn't get any
calls and then discover that the reason was that the pager was dead.
After the second time this happened to me, I got in the habit of putting
fresh batteries in as soon as I got home with the pager. But then, my
employer offered a bonus of $25/week for whoever was on call that week,
plus $25 for each call you answered. (I should mention that we averaged
less than one call a week, but the system still encouraged people to
make sure the pager stayed "live".)
--
I pledge allegiance to the Constitution of the United States of America,
and to the republic which it established, one nation from many peoples,
promising liberty and justice for all.
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On Sun, 27 Feb 2005 22:01:27 -0500, Barry Gold
<barrydgold@comcast.net> wrote:
aconite wrote:
[OP is an exempt IT employee for a state agency in TX. Since he
started, his duties have been expanded to include being on call 24/7 to
resolve network/system problems.]
Yes, you have recourse. You have the right to quit if you don't like
the terms offered. Feel free to circulate your resume.
There are a few caveats. The time you spend responding to calls counts
as "time worked". So if you spend 3 hours on (say) Monday and Wedensday
nights handling calls, you only need to work 37 hours the rest of the
week to qualify for all your pay (and not have to use up "personal",
"sick", or "vacation" hours). However, if you can't do a decent job at
your other duties in that time, you may get a bad performance review and
then lose your job over that.
As an exempt employee, the employer shouldn't be counting hours.
Under federal law, any part of a day he works, he would get "credit"
for the entire day. He could, in theory, work 3 hours a day 5 days a
week, in which case he would have worked a week.
So, I'm not sure what you mean by your 37-hour calculation. An
employer may only deduct hours from someone's pay if he "absents
himself from work for a day or more for personal reasons, other than
sickness or accident." 29 CFR 541.118(a). In addition, "[d]eductions
may also be made for absences of a day or more occasioned by sickness
or disability (including industrial accidents) if the deduction is
made in accordance with a bona fide plan, policy or practice of
providing compensation for loss of salary occasioned by both sickness
and disability." 29 CFR 541.118(a)(3).
------------------------------
Bob Stock, California Attorney
Nothing I've said should be relied on as legal advice.
------------------------------
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Bob Stock wrote:
On Sun, 27 Feb 2005 22:01:27 -0500, Barry Gold
<barrydgold@comcast.net> wrote:
As an exempt employee, the employer shouldn't be counting hours.
Bob, I know you're an attorney, but that's not quite correct,
at least as applied. You can't count hours worked in determining
PAY -- but you can count hours worked in determining other attributes,
such as vacation time, sick time remaining, and raises.
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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On Sun, 06 Mar 2005 22:20:52 -0500, "Arthur L. Rubin"
<ronnirubin@sprintmail.com> wrote:
Bob Stock wrote:
Bob, I know you're an attorney, but that's not quite correct,
at least as applied. You can't count hours worked in determining
PAY -- but you can count hours worked in determining other attributes,
such as vacation time, sick time remaining, and raises.
We've butted heads on related issues before, Arthur. I was addressing
compensation. Generally, an employer can do what he wants with
respect to raises. As for vacation and sick time, you'd have to be
more specific as to what you mean.
------------------------------
Bob Stock, California Attorney
Nothing I've said should be relied on as legal advice.
------------------------------
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Bob Stock wrote:
On Sun, 06 Mar 2005 22:20:52 -0500, "Arthur L. Rubin"
<ronnirubin@sprintmail.com> wrote:
Bob, I know you're an attorney, but that's not quite correct,
at least as applied. You can't count hours worked in determining
PAY -- but you can count hours worked in determining other attributes,
such as vacation time, sick time remaining, and raises.
We've butted heads on related issues before, Arthur. I was addressing
compensation. Generally, an employer can do what he wants with
respect to raises. As for vacation and sick time, you'd have to be
more specific as to what you mean.
It's not directly applicable to the original poster's situation,
but if an exempt employee is scheduled to work (say) 40 hours a week,
but only works 36, 4 hours can be deducted from the vacation
account -- and, under some circumstances, a small negative
vacation balance can legally be deducted from a final paycheck.
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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Arthur L. Rubin <ronnirubin@sprintmail.com> wrote:
Bob Stock wrote:
It's not directly applicable to the original poster's situation,
but if an exempt employee is scheduled to work (say) 40 hours a week,
but only works 36, 4 hours can be deducted from the vacation
account -- and, under some circumstances, a small negative
vacation balance can legally be deducted from a final paycheck.
I completely disagree with that in the case of an exempt employee.
It may, however, be correct for non-exempt employees.
I am aware of a salaried exempt employee being docked 10 vacation
days as the result of a discipline hearing. I asked the manager
if he really had the authority to dock vacation days. He handed
me the Policy & Procedures Manual opened to the correct page. It
needs to be in writing.
As for the original poster's question, States generally allow for
comp time and people who are on call get comp time which effectively
creates to increased personal days off.
Dick - I never was an attorney
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rdadams@smart.net (Dick Adams) wrote:
Arthur L. Rubin <ronnirubin@sprintmail.com> wrote:
I completely disagree with that in the case of an exempt
employee. It may, however, be correct for non-exempt employees.
So if that did happen, the person thought to be exempt may become
no longer exempt. At least that is what I will argue on behalf of
a new client.
I am aware of a salaried exempt employee being docked 10
vacation days as the result of a discipline hearing. I asked
the manager if he really had the authority to dock vacation
days. He handed me the Policy & Procedures Manual opened to the
correct page. It needs to be in writing.
Depends on what state he's in. In California that would be
completely impermissible.
Stu
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