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Login to post Forums » Off-topic discussion » Overtime Claim

May 31, 2011 12:45 p.m. Salanis SuperDork

Okay, so I'm owed unpaid overtime by my most recent employer and am looking to figure out how much I'm actually owed and how best to collect it. I can file a claim with the CA labor commission or go through a lawyer. Both have advantages and disadvantages.

Situation is: I was working as an assistant teacher at a small private school, an hourly non-exempt employee. Last year, I was a chaperone on the end of the year field trip in Ashland, OR, from Monday morning through Friday afternoon. I was required to take meals with the group and supervise kids while I ate, was not relieved for breaks, and shared a room with a couple of students.

I am not sure what all hours I can or cannot claim as worked (does sleeping time count? Does showering time count? or are showers a "break"?). There are provisions in CA labor law for camp counselors, emergency, or medical workers to work long shifts, but I don't think those quite apply to my situation.

I am pretty certain that I'm owed for more than the 39.5 hours I got paid for.

My best guess is that I can not claim 8 hours each night for sleep, and that I am owed for an extra 2 hours (not counting towards overtime) each day for not getting the legally required meal or rest break.

So, Labor Department? or Private Lawyer? The labor department process is simpler in terms of steps, but there is less incentive for them to pay out. With a lawyer, they accrue fees the longer they take to pay (a days wages for each day they take, up to 30 days), but the lawyer takes something like 40% of the settlement. So, typically, the lawyer is the better option the more resistant and longer they are likely to take.

Anyone have any experience with similar situations or suggestions on the best course of action?
May 31, 2011 12:59 p.m. DILYSI Dave SuperDork

Any time I've done overnight work (travel, etc.) as an hourly employee, I only expected to get paid for a 40 hour week.
May 31, 2011 1:02 p.m. Salanis SuperDork

It's not so much the travel as the supervising kids. I would expect that, when traveling, you're typically allowed to go do your own thing for lunch, and that after a certain hour you're not expected to work and have the freedom to choose how you use your time. You're probably also not subjected to 7th grade boys making your room reek of Axe.
May 31, 2011 1:04 p.m. rotard New Reader

You come across as selfish in your post. Why don't you talk to HR and see what they think you're owed before you go talking to a lawyer or whatever. My guess is that you're not owed anything more than the pay you were given.
May 31, 2011 1:07 p.m. Strizzo SuperDork

from what i understand from the one hourly traveling employee, the time you leave the hotel room in the morning until you get back you are "on the clock". this also includes the time from when you leave the house to when you get to your hotel room when you're traveling to someplace, like you leave the house, drive to the airport, fly to wherever, rent car, drive to hotel, check in to hotel.
May 31, 2011 1:10 p.m. Salanis SuperDork

Small school and no official HR. Originally I spoke to my supervisor suggesting that it seemed reasonable that I get a small amount of overtime (say, pay for 9-10 hours per day) since I knew it would otherwise be a lot of money for the school. Their response was that they considered "going on the field trip to be a privilege" and wouldn't pay any overtime for it. I dropped the subject rather than making waves at the time. I've sense been laid off, so I'm trying to get money that I'm pretty sure I'm owed. I just want to figure out what I'm actually owed, and what the best way is to get it.

Maybe I'm being a bit selfish, but I'm pretty sure I'm owed something, and the money would really help fund brewing school.
May 31, 2011 1:23 p.m. Salanis SuperDork

Strizzo wrote:

from what i understand from the one hourly traveling employee, the time you leave the hotel room in the morning until you get back you are "on the clock". this also includes the time from when you leave the house to when you get to your hotel room when you're traveling to someplace, like you leave the house, drive to the airport, fly to wherever, rent car, drive to hotel, check in to hotel.

That makes a lot of sense. This gets complicated since I was still working at the hotel, and did not have my own room.
May 31, 2011 1:28 p.m. mtn SuperDork

Salanis wrote:

Strizzo wrote:

from what i understand from the one hourly traveling employee, the time you leave the hotel room in the morning until you get back you are "on the clock". this also includes the time from when you leave the house to when you get to your hotel room when you're traveling to someplace, like you leave the house, drive to the airport, fly to wherever, rent car, drive to hotel, check in to hotel.

That makes a lot of sense. This gets complicated since I was still working at the hotel, and did not have my own room.

To me that means that you were still working when you were asleep.
May 31, 2011 1:31 p.m. Ian F SuperDork

It really depends on how your work agreement is written out as well as the laws regarding O/T in your state's Dept of Labor regs. I would talk to HR first. They may have an explaination or be willing to work something out.
May 31, 2011 1:31 p.m. Strizzo SuperDork

In reply to mtn:

i would guess it would be like being "on call". you'd be paid some amount less than your normal hourly rate, but would be expected to drop whatever you are doing when called upon for whatever reason.
May 31, 2011 1:42 p.m. HiTempguy Dork

Salanis wrote:

Maybe I'm being a bit selfish, but I'm pretty sure I'm owed something, and the money would really help fund brewing school.

Exactly, cause they sure as hell won't pay you anymore then you are entitled to! The street goes both ways, fair is fair.

I travel for work sometimes, and basically, the moment I have travelled further then it would normally require to get to the office is when my time starts. I also get paid while flying (or driving), and recently, was told no more overtime. I politely informed my employer that was fine, but that means on those mornings when I am at the airport by 5:30am, I'll be going back to the hotel at 2pm in the afternoon.

It's give and take, you worked more hours than you normally would, you are entitled to further compensation. How supervising a class of WANDERING KIDS is easier than having them sitting in a classroom accounted for is beyond me!
May 31, 2011 2:03 p.m. Ian F SuperDork

Salanis wrote:

Their response was that they considered "going on the field trip to be a privilege" and wouldn't pay any overtime for it.

Gee... I would consider that grounds for combat pay...
May 31, 2011 2:25 p.m. fasted58 Reader

Ian F wrote:

Salanis wrote:

Their response was that they considered "going on the field trip to be a privilege" and wouldn't pay any overtime for it.

Gee... I would consider that grounds for combat pay...

Add the responsibility that goes w/ that 'privilege'. If any of the kids got in trouble, hurt or lost (like kids will do, it's happened, I'm just sayin') Salanis would be held responsible... and maybe even make the news at 11.

I bet Salanis won't do n e more 'volunteer work'.
May 31, 2011 2:51 p.m. fast_eddie_72 Dork

Were you required to do this trip, or was the opportunity offered to you?

I dunno. If I expected to be paid 24/7 on OT for something like that, I'm pretty sure I'd have worked that out before I went. Plus, the whole "didn't make waves" so you didn't follow up on it at the time, but now you're going back - I'm guessing that's not going to help your case any.
May 31, 2011 3:03 p.m. Wally SuperDork

Anytime work comes up with something odd like this that isn't spelled out in the contract we tell our guys to find out the pay in advance if it is going to matter. It's very hard to go back in time to get it, especially if you didn't persue it when it happened.
May 31, 2011 3:53 p.m. Salanis SuperDork

I am in California, and the labor laws here are stupidly "in favor" of employees enough that it probably helps my claim situation.

fast_eddie_72 wrote:

Were you required to do this trip, or was the opportunity offered to you?

I dunno. If I expected to be paid 24/7 on OT for something like that, I'm pretty sure I'd have worked that out before I went. Plus, the whole "didn't make waves" so you didn't follow up on it at the time, but now you're going back - I'm guessing that's not going to help your case any.

I was told that I "didn't have to go, if I didn't want to." I couldn't really afford another week without pay, so I went. Hourly employment at a school was really hard during the spring with all the unpaid vacations. I didn't pursue it earlier because I was getting laid off for the summer and figured I would probably not be hired back if I were to make the claim. CA law allows me to make a claim up to three years back.

There is also a family component. My step-mother owns and operates the school. I'd also been trying to avoid family tension, but she has managed to cause enough of that with other things she has done that I'm fine treating my relationship with the school much more impersonally.

Ian F wrote:

Gee... I would consider that grounds for combat pay...

Hee Hee. Yeah, I got to share a room with the two rowdiest boys in the class. The ones they wouldn't want to subject parents to sharing a room with. I actually like them, but they are tough. I believe I threatened to mace one of them with his can of Axe if he sprayed it in the room again (I can't stand cheap perfumes).
June 1, 2011 8:08 a.m. RossD SuperDork

After the 'privilage' and 'step mom' parts of the story came to light, I'd say cut your losses and look for some cash jobs in the time being.
June 1, 2011 11:13 a.m. midknight Reader

See if a lawyer will give you a free consultation, and get their opinion on the strength of your case. They (presumably) know the law and how it's applied in Ca. Doesn't sound a bit selfish to me.
June 1, 2011 11:16 a.m. Ranger50 HalfDork

Sounds like since you are "family", you are getting a gift of just being there and should just suck it up. Business is business, play hardball.
June 1, 2011 1:11 p.m. Hocrest Reader

The other consideration is the size of your community and the career path you want to take. As word of something like this gets around to other prospective employers be prepared to explain how poorly you were treated and why you decided that it was better to sue than to work this out with your employer in advance.
June 1, 2011 3:44 p.m. Salanis SuperDork

Hocrest wrote:

The other consideration is the size of your community and the career path you want to take. As word of something like this gets around to other prospective employers be prepared to explain how poorly you were treated and why you decided that it was better to sue than to work this out with your employer in advance.

I am changing careers. I've decided to pursue professional brewing rather than deal with the drama and politics of teaching. I have attempted to work it out in advance and gave up when I knew I wasn't going to get anywhere. And, the former boss has... fallen off the wagon again.

midknight wrote:

See if a lawyer will give you a free consultation, and get their opinion on the strength of your case. They (presumably) know the law and how it's applied in Ca. Doesn't sound a bit selfish to me.

Yeah. I think that's the correct answer. I'm going to try to contact the local labor commission office. Last time I did, I dealt with a desk lady who answered my questions only enough to get me to go away, and cursory research showed that she was incorrect on several points of her understanding of CA law.

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