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Curiousazhell

Non Exempt on Call **Something is Fishy**

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I am employed same Fortune 500 company 18yrs. I am currently classified as non-exempt. Approximately 6 years ago part of my required job duties was every 3 weeks I carried a pager(don't laugh as hard as I did), I was not to travel too far from my residence. suggested was 20 minutes travel time. I work in IT.  If while on call I received a text from the pager I was to hurry home log in remotely and address the issue and correct. The following day I would advise the time logged in remotely and I was entitled to comp time off equal to the time I worked while I was off my regular shift. So if I work 8-5 and get a page at 2am and work 1.5 hours I was entitled to take off or shorten a shift by 1.5 hrs but it had to be the wit the same week even tough we were paid 15th and 30th. They rarely made exception to carry over to following week even if that week was within the same pay period.   

 

Something is Fishy.... around 2012 while still non-exempt employee in the same position I am advised I am no longer allowed to be "on call" with pager and I was forbidden to do any work outside my normal shift hours. To me that raised red flag. Somehow I think either somone went labor board or whatever but it just seemed bizarre that I went from just working my regular shift schedule and being on call and being compensated with equal time off the same work week even if it pushed me over 40hr work week. My employer is a large whale of a bully so I didn't want retaalaiton or fear of being managed out of a job, so I said nithing.

 

Is/was this legal in Maricopa County Arizona?

 

Now its 2016 and my area has 2 employees. One is leaving next week. I will take on the work load, just me and w2x work. I worked alone in this dept all 2015 when they pulled the other employee to different area. the work load and stress was intense causing issues at home and my occasional snarky response to late in the day requests to be completed by the time my schedule ended. After a few months it became second nature but the stress levels stayed high sometimes pushing me to brink of mental breakdown. Employer offer as little support as possible. I am now told my schedule needs to change to fit business needs. I do not like it as I kept same schedule all 2015 while being the only employee in my dept, but I can understand business needs drive most decisions. BUT I was told they were processing paperwork to change schedule as well was change status from non-exempt to exempt. I am now not only expected to take on 2x work load but I am now expected to complete tasks and not leave at a designated time. I asked.. 'So I received a year end review/score of 3 out of five which is not great and noy bad.. just average and now I am being told my skills are not only good enough to keep me in my position but good enough that I am expected to work in excess of 40hrs week and there will be ZERO salary or any type of monetary compensation for increasing work load and working longer hours.

 

One item to note. This year has been terrible with regards to loss and time off. In Feb I went on vacation to see mom out of state the day I landed she went into hospital and 4 weeks later she passed away. Initially I was on vacation but one day after my vacation started it turned to FMLA. Unpaid leave. My thoughts were to initiate FMLA after my 40 hours of vacation were over. My employer changed my status to unpaid leave 24 hours after I left work.  Now this is the part that shows how my employer could care less about its employee (me), the stress of home hospice and tending to a dying family member. 

My first 40 hours of paid approved vacation started Friday Feb 26 then Mon - Thurs following week. Yet all my benefits were suspended as of Feb 27th as my employer changed my status to unpaid approved FMLA which I NEVER initiated.  So I am out of state, wife is not with me yet calls me as she is trying to pay mortgage etc and I haven't received pay for my 40hrs of approved vacation. I advised I had too much on my plate to deal with our crappy HR personnel so I borrowed from family. I was given 3k to pay bills and I advised I would initiate a hardship withdrawal from my 401k to repay the 3k but it would take about 4weeks. Well I was stunned that I had no access to my 401k as I was not an active employee so no access to my 401k. I had a very hard time dealing with my mother being embarrassed with her son having to change and bath her. My mental state is quickly collapsing, I have extreme AHDD. Now remember, this was supposed to be just a week visit with my mom so I only have one weeks worth of medication. the stress is taking its toll on me. I notify my wife I need my medication sent to me out of state, She calls my doctor who is not willing to assist in getting a new script or even offer any suggestions, I am now a ticking time bomb but I searched the web to a local doctor and made appointment, I say to myself that I just need to get thru a few days until I could see doctor and get new script. Well guess what...I attempt to use my health benefits and I cant as they were last effective Feb 26 as employer changed my status to unpaid leave. SO my mental state is about to go into a nuclear meltdown. OH I also forgot to state that I had until March 30 to get my health assessment completed by a doctor in order to get preferred rates and the exam and all blood work and test are at ZERO cost to employee.. Let me rephrase, ZERO cost to active employees. So I now have less than 10 day to get all my forms and test completed, and get results back to employer but I have NO health coverage so I have to borrow more money and pay full price out of my pocket.

I apologize for the long version but it gets worse. So my paychecks are all jacked up but I didn't care as I was back home and I had small amount of money left to me by mother. So I put aside all my employers screw ups and try to get my life in order. I go back to work on a Monday and Tuesday driving home from work I am broadsided by a woman that ran red light. Car is totaled, I am in hospital and employer not happy as I am now on Paid Medical Leave. SO I have approved short term medical leave due accident. While in hospital the run a bunch of normal test including xrays, and CT scans etc . After a few hours I am told that no head trauma, no broken ribs etc etc BUT they have discovered a large mass in the center of my chest that should be looked at by a pulmonary specialist asap.  my frustration with employer is so close to last straw and they proved they were true bully's as  application for intermittent FLMA was a nightmare. I only need intermittent FMLA which is unpaid as I used up most vacation,  personal time etc with my mothers care and then while in hospital after car accident. My intention s were without my employers approval for intermittent FMLA, my job was in jeopardy. I would need to see specialists to determine plan of action for the 3.6 CM mass in my chest. I my employer would some use it to affect my position and continued employment.    

 

Getting back to issues... I believe employer violated federal and state labor laws with regards to employment status non exempt while being required to be on call and not properly compensate the employee. Whether it was knowingly or discovered after the fact, so much time has past it is evident they have no intention to own up to the mistake and offer some type of retro active, they are just sweeping it under the carpet.  And now they want to force me to exempt status, work more hours, 2x work load, restrict my freedom of travel by being on call and offer absolutely ZIP, NADA, NOTHING, ZIPPO. Is/was tis legal? What should I do if anything? I fear my hatred towards the powers that be with my employer will at some point succeed in either firing me or getting my to quit. BTW I am eligible to take phased retirement at  end of 2017 but employers intentions in my opinion are to push me to the brink!!

 

I apologize for the lengthy explanation but I felt I should state all facts. Thanks for listening!!! Its late, sorry for grammatical and spelling errors I must get sleep.

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First ..condolence to your family, if you were approved and have vacation available with paid, then your manager cant change it, however manager could change IF you don't have vacation (days) available. you could file FMLA still, by any chance r u injured at work and file workerscomp?

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The federal Fair Labor Standards Act (FSLA) has two basic rules regarding pay for a non-exempt employee: (1) the employee must be paid at least the federal minimum wage for all work the employee does for the employer and (2) if the employee works more than 40 hours during a single work week then the employee must be paid over-time for all the time worked over 40 hours.

 

With regard to being on call, the federal Department of Labor (DOL) Fact Sheet # 22 says the following: “On-Call Time: An employee who is required to remain on call on the employer's premises is working while ‘on call.’ An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee’s freedom could require this time to be compensated.”

 

So, as to your time at and near home with the pager, that was almost certainly not work time and thus you did not have to be compensated under federal law for that. Of course, you did have to be compensated for the work you actually did when you did get paged. It sounds like the employer did that and so I do not see any obvious violation of the FSLA in what what you stated. Even if there was a violation, however, it is too late to pursue it because federal law sets a two year statute of limitation (SOL) on claims of unpaid minimum wage or overtime, and that on call time was back in 2012. Arizona similarly sets a two year SOL for such claims under the state minimum wage law, or three years if the violation was willful. Either way, again it is too late to pursue it even if the employer violated the state law.

 

As to your current situation, employers are free to change your job duties and hours at any time. They can assign you a ton of work to do. And they can increase how much work you do without an increase in the rate of pay you get. So long as you are getting paid minimum wage, getting paid for all the time you do work, and getting paid over time for the time over 40 hours a week then the employer is not violating either federal or state law. And if the new work that the employer gives you changes your classification from non-exempt to exempt, then the employer is generally exempt from those requirements. It’s not clear exactly how you are getting paid now or what your work involves so I cannot say if there might be some violation of federal or state law regarding your pay.

 

As for the leave, it will matter a bit exactly what your employer’s vacation pay policy is. It may well be, however, that the employer was entitled to revoke the approved vacation and instead treat the time as unpaid FMLA leave given your circumstance. However, while out on FMLA the employer is required to maintain all your benefits, including your health benefits. The fact that the employer suspended the benefits right as the FMLA started is troubling. I suspect that there was miscommunication between the manager and HR as to what your status was, but whatever the problem was they need to fix that to ensure you get the health benefits you were entitled to receive. That happened back in February. Has the issue on the benefits been fixed? If not, what has the employer told you about that?

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The above post explained the pay/on-call/exempt issue so I won't get into that. Nothing you posted sounds like a violation of any kind.

 

FMLA may be unpaid but your benefits should remain in effect so long as you continue paying the premium. Your 401K should not be effected at all though withdraws are rare and I can't imagine your situation qualified.

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