randy 77zt Posted March 11, 2010 Share Posted March 11, 2010 my employer had me classified as an exempt salaried employee.but i am far from that.i work from my house driving thier service truck.i work as a mobile service technician on the equipment they sell.now they dont want to pay for my driving time.typical day-drive 3 hours,work 2,drive back 3.they dont want to pay any overtime or time for driving to jobsites.i dont think this is legal.any opinions here? Quote Link to comment Share on other sites More sharing options...
GeeZ Posted March 11, 2010 Share Posted March 11, 2010 I don't know the employment laws of CA, but calling you exempt doesn't make you exempt. Unless you are management, highly skilled or have advanced degree, you are probably non-exempt. You should be paid from the first job to the last, including drive time. However, the employer doesn't have to pay you from the last job to home or from home to your 1st job. At least that is in Texas. Check with your state's wage and hour dept. Quote Link to comment Share on other sites More sharing options...
kiwi303 Posted March 11, 2010 Share Posted March 11, 2010 I don't know the employment laws of CA, but calling you exempt doesn't make you exempt. Check with your state's wage and hour dept. +1 To the above, what you are is specified by labour laws, not by what the boss wants you to be, Calling a ball of manure a rose doesn't make it smell any sweeter, just as calling a non-exempt labourer exemt does not make him exempt either... Whatever Exempt may mean... Your Dept of Labour should have a free advice service, and if you what you describe is illegal labour practice, they should have a bunch of inspectors and lawyers pay your boss a visit. Quote Link to comment Share on other sites More sharing options...
Tony D Posted March 11, 2010 Share Posted March 11, 2010 (edited) Randy, take this from me, a fellow Californian who has had the EXACT same job description you now have... The labor board will CRUCIFY THEM for not paying. What you have to determine is where your normal zone of work is, or office. At most, they can say you have to 'give up' the normal commuting time to go to the office. After that, they pay. Period. Stuck in traffic, THEY PAY. It's portal to portal. The big thing is 'are they charging for the time travelled to the customer'---if they are, you have to be paid for it or they are committing mail fraud when they mail out the invoices. If you are 'home based' and dispatched from the house every morning to a job then your time starts and ends at point of dispatch. I worked for three different major companies based back east, and every time they tried that crap, HR called up the consulting line to the Cal Labor Board, and RAPIDLY changed their tune. Other things to note: Daily overtime. You work over 8 hours daily, you are paid 1.5X. Period. They have you working 4 10's witohut a written agreement: 2 hours overtime, retroactive for up to the last three years. Work at least four hours every day of the week? 1.5X for all the hours on Saturday, 2X for all the hours on sunday (7th day worked). CA is one of the few states which actually has doubltime codified in statute. If they don't want to pay, park their truck at the shop, drive into the shop and check it out every day and then drive to the jobsites. Make sure you're back at the shop at the end of the day. Do that for a couple of weeks and they will start to see their cheapassed ways don't help them, or their customers. One thing you NEED to do is keep track of your time. Starting, stopping, and lunch/breaks. I ran a daily log with entries for starting out in the morning and when I returned home. If I ate in the truck on the way to a job---THAT IS NOT LUNCH IN CALIFORNIA! That is chargeable time. For a while I simply turned in the time as I did it and told them "change the time cards yourself and let me know what you're paying me, and make sure I know who changed them---make sure they sign them and give me a copy for my records" If they are so stupid to actually DO that... the labor board will crucify them! CRUCIFY THEM! All it takes is one guy to say 'yeah, they're doing it to all the guys in field service' and they will (the labor board) send in auditors and aske everybody in a sneaky friendly way how they are treated, how long they work, do you get paid for all the time you're working, do you get paid for the drive time to and from jobs... Then they nail the company. I;ve been on both sides of this equation, being management first. AFter that experience it boggles my mind why managers still argue about this stuff, it's black-letter law. There is no disputation. Basically, if you are hands-on----your hourly. I'm classified differently now since I actually DO manage/supervise people. It's just that the past year they have all been so incompetent or green that I've had no choice but to do the work hands-on myself while training them! But these people PAY me on time, and I know what I'm due. Which is another thing, they have to give you a statement you can read and understand regarding your overtime, and your overtime must be paid in a 'timely' fashion. Edited March 11, 2010 by Tony D Quote Link to comment Share on other sites More sharing options...
SHO-Z Posted March 11, 2010 Share Posted March 11, 2010 (edited) Tony D is 100% correct. If your employer gave you any papers on your change of status KEEP THEM, if not ask for your changes in writing. In todays economy some employers are trying anything to cut corners. Edited March 11, 2010 by SHO-Z Quote Link to comment Share on other sites More sharing options...
randy 77zt Posted March 12, 2010 Author Share Posted March 12, 2010 comapny is based in socal-i live in norcal and get dispatched by computor.the truck stays at home with me.some weeks i am gone all week,another thing that kind of irks me is my expenses on the road .i have to pay for everything and turn in a report at the end of the week.they reimburse me usually in about 2 weeks.i really dont like churning about $2k a month thru my bank account.now the hr dept is saying they are only going to pay while on the jobsite or in between jobsites-not to and from my first and last jobs.problem is sometimes i drive 6 hours-stay overnight-work 2 hours-drive home.that means being gone for 2 days.if they tell me i am only going to get paid for 2 hours i will park thier 4x4 truck somewhere real good . Quote Link to comment Share on other sites More sharing options...
randy 77zt Posted March 12, 2010 Author Share Posted March 12, 2010 comapny is based in socal-i live in norcal and get dispatched by computor.the truck stays at home with me.some weeks i am gone all week,another thing that kind of irks me is my expenses on the road .i have to pay for everything and turn in a report at the end of the week.they reimburse me usually in about 2 weeks.i really dont like churning about $2k a month thru my bank account.now the hr dept is saying they are only going to pay while on the jobsite or in between jobsites-not to and from my first and last jobs.problem is sometimes i drive 6 hours-stay overnight-work 2 hours-drive home.that means being gone for 2 days.if they tell me i am only going to get paid for 2 hours i will park thier 4x4 truck somewhere real good . Quote Link to comment Share on other sites More sharing options...
randy 77zt Posted March 12, 2010 Author Share Posted March 12, 2010 comapny is based in socal-i live in norcal and get dispatched by computor.the truck stays at home with me.some weeks i am gone all week,another thing that kind of irks me is my expenses on the road .i have to pay for everything and turn in a report at the end of the week.they reimburse me usually in about 2 weeks.i really dont like churning about $2k a month thru my bank account.now the hr dept is saying they are only going to pay while on the jobsite or in between jobsites-not to and from my first and last jobs.problem is sometimes i drive 6 hours-stay overnight-work 2 hours-drive home.that means being gone for 2 days.if they tell me i am only going to get paid for 2 hours i will park thier 4x4 truck somewhere real good . Quote Link to comment Share on other sites More sharing options...
Tony D Posted March 12, 2010 Share Posted March 12, 2010 Only out $2k a week? hope you got that on an Airlines Miles Card, or two, and rotate them so you get miles on there! I'm at $28K right now. Yeah, I get BIG expense checks. Costs add up, I can tell you're local! They are SO SCREWED. What they WANT and what the LAW requires them to PAY are two different things. And what they are trying now is based on you being a 'salaried management' employee. You do the work hands-on, right? If so, you have to be paid hourly. If the truck is at your house, and you have no office to report to, YOU ARE PORTAL TO PORTAL and have to be paid as such. There are some logical exemptions (You don't get paid to go from the hotel to dinner, for instance. You don't get paid if you sleep while driving your truck. You don't get paid, generally for time spent sleeping or eating...as long as it's in a designated area for those activities.) but generally you should be paid from the time you leave to the time you arrive. If they have not negotiated a 'travel rate' beforehand, then it's at your full hourly rate. They CAN pay you a lower rate for travel, but that lower rate works towards overtime. If you work it right, you maximize overtime. If they play the federal game, you get paid 1.5X for driving home. I always was travelling home on overtime... You are a 'remote employee' and the benefits are great... the company needs to get a call from the labor board to straighten them out. What usually works is sending HR a link to the applicable pages on the CA Labor Board Website that will detail the penalties for non-compliance. Another ding they try is 'split shifting' where they call the evening the 'next day'---and that doesn't work either. Law says you start at X time on Monday, your time starts that time EVERY DAY FOR THE WEEK. Meaning if they ask you to leave early on Monday Morning (say 4AM) but the prior week you were leaving at 7AM the week previous, TECHNICALLY AND LEGALLY you are likely entitled for 1.5X time from 4AM to 7AM monday (as it techincally is the last three hours of sundays workday, and if you worked 40 hours the prior week, that is overtime!) That's a hair splitter, and only really applies if you were working on the weekend, then it comes into doubletime anyway. They are playing typical games. Lots of times companies based in a state where Federal LAw is the only one taking precedence will do this in CA. They get a rude awakening. Lots of the HR people take general FEDERAL labor law courses, but CA is different! I went through 40 hours of CA specific labor relations and law course, lots of that changed, then changed back again... These people aren't following the law. Call them on it. And it doesn't have anything to do with the economy. Companies are ALWAYS doing this stuff. Esepcially smaller branches or places where some whiz-kid MBA has taken over from outside the state. They are betting if nobody compalins they get away with it. This was the case with IR. Got a new MBA to run the division, and he came out flatly stating 'we aren't having 50 pay policies for 50 states'---when I worked at another company that actually CARED about it's employees, that's EXACTLY what they said they would do if that is what they had to do! They are also the company that sent me to the labor board courses for CA! Long story short, Mr. MBA saved some money shaving my time going by Kentucky Labor Law, and while I didn't lodge with the CA Labor Board (I did, then took 6 months to get them off me for followup, they were like rabid dogs to sink their teeth into a big company!) I did follow internal protocols to get the money owed me. Even at that I was shorted as three months of heavy overtime records were 'lost' in the 'failsafe record keeping server' in Davidson... If I'd gone after them for what I was owed according to CA standards, it would have DOUBLED my take. I'd start keeping SCRUPULOUS manual records, do it all in writing. Make them aware they are in violation of state payment requirements. E-Mail is good for that. Find another job, and if they haven't done right by you by then, file the complaint the day you give your notice. Tell the Labor Board you left because of the pay issues and them acting like they didn't have to follow the law. That should get a good response. Nice thing about doing it this way, they calculate what you're owed. You are not an employee. Therefore, you get a SETTLEMENT CHECK. (eventually) And know what? That's not taxable! The more records you have when you go in, the better. I'll PM you with something else. Quote Link to comment Share on other sites More sharing options...
Tony D Posted March 12, 2010 Share Posted March 12, 2010 (edited) Oh, and that 'to and from' is a 'commuter exception'---they are trying to do something they can't do. They have to define a 'reasonable commuting distance' to invoke that, and then 'to and from' the jobsite within those ranges, you don't get paid. If you drive 6 hours to one jobsite, then go ANOTHER 2 hours away, to another, they are on the hook for travel back of 8 hours. If you lived 2 horus from the office, then they wouldn't pay you for the first two hours and last two hours of the day as you would be doing that to and from the office anyway. But you are home - based. They are twising and misapplying a section of the labor code meant for people employed at a FIXED location doing OCCASIONAL field work. There is an instance of job-hopping assignments as an example on the labor board page describing what they are talking about, but I dont think it's applicable to you because of the distances. Really, you need to talk to the labor board! Heres some opinon letters on stuff from the Cal Labor Board Site. If you spend time in hotels, my suggestion is you start reading the codes. They are VERY eye opening. Travel Time (Page 6, Item #2---printing these out and leaving them where HR people are, with the applicable parts highlighted sometimes 'brings change' without ever having to say anything. It's best nobody see you drop them off. Mailing to the office from some faraway state helps add mystery...) http://www.dir.ca.gov/dlse/opinions/1994-02-16.pdf More Travel Time Stuff: http://www.dir.ca.gov/dlse/opinions/2002-02-21.pdf http://www.dir.ca.gov/dlse/opinions/1989-12-07.pdf http://www.dir.ca.gov/dlse/opinions/2003-04-22.pdf Generally interesting reading: http://www.dir.ca.gov/dlse/opinions/1986-12-01.pdf http://www.dir.ca.gov/dlse/opinions/1997-02-21-2.pdf http://www.dir.ca.gov/dlse/opinions/1993-01-07.pdf Edited March 12, 2010 by Tony D Quote Link to comment Share on other sites More sharing options...
GeeZ Posted March 12, 2010 Share Posted March 12, 2010 You need to just talk to your supervisor. Tell him what you what you think and get ready to walk. Quote Link to comment Share on other sites More sharing options...
woldson Posted March 12, 2010 Share Posted March 12, 2010 Great stuff Tony! Thanks for looking after fairness from all sides of issues! I hate how "profit" on the back of the labor force is the attitude of current "degreed" kids. It did not use to be that way, good employees used to be considered an asesset, not a cost. Seems like it is easier, if not more fun, to find money in a worker, then it is to find it in product and sales. Lazy Bastards! Quote Link to comment Share on other sites More sharing options...
randy 77zt Posted March 16, 2010 Author Share Posted March 16, 2010 i have sent the hr person all that stuff.they changed me to hourly and dropped my pay $3+ dolars an hour.no more mr nice guy .no more free educattional emails.i either going to file a lobor board claim or get an attorney.last summer they sent me to work in the shop in new york city for 2 weeks .worked my ass off.they owe me for 40 hours of ot in 2 weeks Quote Link to comment Share on other sites More sharing options...
Challenger Posted March 16, 2010 Share Posted March 16, 2010 How do they still employ someone that is only productive 2 hours out of 8? I mean that theyre paying someone to drive 6 out of 8 hours, times which doesnt produce anything. Just curious. Quote Link to comment Share on other sites More sharing options...
randy 77zt Posted March 17, 2010 Author Share Posted March 17, 2010 the company has allready been paid for this-i work as a service tech to honor the service contract that they sold with the sweepers.and i dont really care if they cant project costs 5 years ahead. Quote Link to comment Share on other sites More sharing options...
JoeinCA Posted March 17, 2010 Share Posted March 17, 2010 Get a Lawyer. Immediately. I would recommend mine, but I haven't won my case yet. Quote Link to comment Share on other sites More sharing options...
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