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So, I didn't get paid overtime...

Discussion in 'Bad Dog Cafe' started by jeremypodom, Dec 17, 2012.

  1. sax4blues

    sax4blues Friend of Leo's

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    Continue to have the conversation with your manager, and he/she is unsure, then call HR directly. There is nothing wrong with asking questions and understanding the terms of your employment.

    I enjoy TDPRI discussions, but unless a TDPRI member works at your company in a capacity to know your specific employment structure, all of this is just fun. Talk to your company, they are the only people who know what and why they are paying you what they do.

    If after understanding what the rules are at your company(with benefit of the doubt they are following the law) you feel there is a better situation for pizza delivery, then try to get on with one of those companies. But before you take another job, be sure to ask questions about how the new business pay structure works.
     
  2. Skully

    Skully Doctor of Teleocity

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    As you indicate, company regulations are obviously trumped by whatever laws are in effect. Companies often try to screw employees over when it comes to overtime pay, etc., including those run by people who publicly present themselves as touchy-feely, caring do-gooders.

    To take the company's word for it would be silly. Of course, the company may try to punish you/fire you for seeking proper compensation, which is, of course, illegal, but you might not have the will, the time or the means to fight them over it.
     
  3. jeremypodom

    jeremypodom Tele-Afflicted

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    That's what I'm hoping to avoid. I really enjoy my job, to be honest. It's easy, fun, and pays better than other jobs I've had (I've made as much as 20/hr in tips on weekends) This job is only temporary to get me through this next semester before I go back to school in Tennessee so I'm not too concerned about finding a better job in the meantime. This one is doing it just fine for me :) and it's only temporary.

    My problem isn't so much that I wasn't given over time, and neither was my shift leader (similar to assistant manager). What worries me is the idea that this isn't just my store; it could be the entire area (almost 50 stores, I believe), OR it could be the entire chain. My $20 isn't worth fighting over really, but if there's thousands of others being cheated also.....

    Of course, that was all speculation ^^^^ I'll know better by tomorrow at the earliest.
     
  4. Chud

    Chud Poster Extraordinaire

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    True, every employment situation is different, but Texas is a state that has strict adherence to the FLSA so the rules are pretty straightforward. The only groups specifically exempt from overtime pay (as long as certain conditions are met) are executives, some administrative personnel, professionals, computer-related personnel, and outside sales positions. Unless there has been a major shift in delivery drivers' and shop staff's job duties at this restaurant/establishment none of those exemptions apply, and anything over 40 is subject to overtime pay.

    http://www.dol.gov/whd/regs/compliance/whdfs2.htm#.UM-JvrahC2w

    Having been in the restaurant industry for more than 20 years in numerous capacities from busboy to executive chef, and having been leadership in state, federal, and class action lawsuits against an employer for wage & hour infractions (among many other violations), it has been my experience that if you are experiencing this at your branch chances are it is happening elsewhere.
     
  5. jeremypodom

    jeremypodom Tele-Afflicted

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    Thank you Chud, that was the kind of input I was hoping for. Seeing as you have such experience, what would you recommend I do?
     
  6. Chud

    Chud Poster Extraordinaire

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    In my experience in the restaurant industry, a lot of managers who are in charge of implementing the directives of owners/corporate are pretty ignorant of labor and wage & hour laws. A directive from ownership/corporate to cut down on overtime can be (and has been in my experience) interpreted by management as a call to shave timesheet hours down under 40, or to just pay regular time after 40. Whether or not your situation involves anything other than pure ignorance of the laws is not really the issue, but that is where the list of troubles begins.

    There are a lot of considerations to think about when raising this kind of issue with an employer. It may be this simple matter of misunderstanding the laws, which if brought to their attention in a positive and constructive manner SHOULD be easily rectified if your boss is a halfway decent human being. That being said, just because your manager is a decent human being and decides to rectify all overtime pay going forward doesn't do anything for his or her labor budget.

    You and everyone else might find yourselves suddenly losing that last shift that puts you into overtime every week, or being sent home early in order to avoid overtime. This is not illegal (though some states mandate "show up" pay), just poor planning and execution on the part of management. You may be seen as a troublemaker which could result in anything from just losing favor with your boss, to it being only your schedule that gets shorted every week, to actually being fired for no reason (or a trumped up one depending on your boss's style).

    If there is indeed some systemic issue where an unofficial policy in the company mandates that overtime not be paid, you have to decide very early on what you are willing to do, and be willing to follow through if you do decide to take action. These types of actions/lawsuits can take years, take up a lot of your life, and can get really ugly. Even just trying to find out if others in the company are experiencing the same issue can be dangerous for your own employment so be careful.

    You are taking the right first step by going up your chain of command. Address the issue in a constructive manner when you speak to your boss and/or the GM, but you may have to go higher as the GM should be well aware of where his/her P&L is at and why.
     
  7. Guitarzan

    Guitarzan Poster Extraordinaire

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    This is not an accurate statement of the law. The Federal Labor Standards Act is the operative federal law, and it is accompanied by regulations promulgated by the Department of Labor. States can have some law on it too, but most do not. FLSA ("Fallsa") has a number of exemptions for management personnel, commissioned sales reps, etc. So-called "misclassification" suits are a big trend under FLSA right now, the crux of which is that the employer misclassfies the employee to assert an exemption to overtime pay.

    http://www.kansascityemploymentlawyerblog.com/fair-labor-standards-act-flsa/

    One can get to the nub of the matter by researching the issue on the Dept. Of Labor's website and doing a search under FLSA, its exemptions, and "wage and hour claims."

    http://www.dol.gov/compliance/laws/comp-flsa.htm#.UM-U3Kxu7Kc
     
  8. StarliteDeVille

    StarliteDeVille Tele-Meister

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    The way a place I worked for handled this was working the employee less the next week, as we were paid bi-weekly. In order to get ot, you had to go over 40 both weeks of the pay period. This was in a different state, so the laws may have been different, or maybe we just accepted it as the gospel because some gm said it to us. Our success model now seems to be more based on squeezing whatever you can out of anyone with less power, than working harder than the next guy. Sounds like you have some things going for you outside of this job. Just view it as a temporary stop. Unless you have aspirations in the legal field, I would let this go. Learning that you don't want to have to work for this kind of company in this kind of situation is worth much more than $20.
     
  9. Guitarzan

    Guitarzan Poster Extraordinaire

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    "Right to work" legislation only pertains to labor relations/collective bargaining. It does not pertain to wage and hour cases and exemptions to overtime pay.
     
  10. Guitarzan

    Guitarzan Poster Extraordinaire

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  11. Chud

    Chud Poster Extraordinaire

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  12. Chud

    Chud Poster Extraordinaire

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    I think he was mistakenly (and sarcastically) referring to At Will Employment states. :lol:
     
  13. Guitarzan

    Guitarzan Poster Extraordinaire

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    It doesn't matter that it was Ole Miss, that is about what I would expect for compliance with FLSA. The employer has a lot of statutory record-keeping burden that most don't know and do not comply with. Thus, when they get hit with a collective action and/or class action, they can't prove much, and employees can get away with introducing an estimation of hours of overtime as evidence to prove damages.

    One can see from your description what a mess it can become, because the employees don't like all the hassle and don't want to comply with those strictures.
     
  14. Guitarzan

    Guitarzan Poster Extraordinaire

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    At-will is yet something else that is distinct from "right to work." ;)
     
  15. bendecaster

    bendecaster Friend of Leo's

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    Jeremy, I still haven't seen you mention if you did work more than 40 hours the week in question.

    Also, you mentioned that this is about $20 worth of overtime. I would have to take into consideration how much my time is worth. If this is a recurring issue, yes it's worth some time to ensure it doesn't happen again to you, or your other workmates, but if it's a one time issue, I wouldn't be spending too much time trying to recoup $20. That's where they have you by the short hairs. They(who ever they are) are banking on you giving up and not putting umpteen hours into this minor oversight, if it is one.
     
  16. Deep South

    Deep South Tele-Holic

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    I'm originally from Houston myself. I worked at Wal Mart one year and they made us keep on working after clocking out after 8 hrs all the time.

    The managers response to my questions about said overtime?

    I was welcome to find another job since there were a long line of people waiting to take my place.

    I quit.
     
  17. bendecaster

    bendecaster Friend of Leo's

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    I'm with you on that one. If they asked/told me to work after I punched out, I'd have told him/her to hold their breath, as I walked out to my car and drove home.
     
  18. Chud

    Chud Poster Extraordinaire

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    Yep, yet another example of an employer "misunderstanding" the law. It sounds like they were misclassifying delivery drivers as being in outside sales positions where the position's primary duties are supposed to be selling. The "Drivers Who Sell" exemption (there is no other drivers exemption) in the FLSA is very specific about why these positions are exempt. Again, a very different job description from what pizza shop staff generally do.

    A lot of restaurants got away with a lot of shady stuff for a long time (and still do) because the employees they steal from a) are young, b) often do not know their rights, c) are not planning on staying there for a career so they d) don't think it's worth the trouble, or e) may have questionable immigration status.

    Case in point with a Dominoes franchise:

    http://articles.sun-sentinel.com/20...-wage-fair-labor-standards-act-domino-s-pizza
     
  19. Chud

    Chud Poster Extraordinaire

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    Yes, I know that. Either party (employer and employee) can break the employment relationship without liability without notice. I was merely giving the OP a terminological option perhaps closer to his intent. ;)
     
  20. TeleTim911

    TeleTim911 Friend of Leo's

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    My wife works for a payroll service, just asked her about this. If you work more than 40 hours per week, you should receive OT for anything over 40 hours per week. This is Federal Wage and Hour law.

    A situation comes in that you are also a tipped employee, therefore figuring your OT rate could get complicated, however you should be compensated.

    Wife also says that some states have mandates that allow smaller operations to be exempt from OT for a business that employs less than X amount employees - depends on state laws. Check TX laws on that.

    She said your best advice is to contact local Wage And Hour division and talk to them. A company she worked for several years ago got into huge trouble over this same problem...they thought they could make employees "salaried employees" and then work them 50-60 hours a week without compensation...not so. Someone filed a lawsuit, wife got a nice settlement before business closed. (no she was not the whistle blower, an ex-employee was).

    Regardless of what you do, two things come into play here....you could be and possibly will be fired or "laid off" once you start raising a ruckus. Second, the employer should know the laws regarding hiring of employees, and laws concerning such.
     
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