Dear Experts, I am writing about an Issue between my spouse and her employer. Right now she is working an hourly paid job Mon-Fri. She often times get urgent phone calls and emails on her time off. On the average I would say 10-15 calls/emails on her days off. This has gotten to the point where she can't take vacations because she is expected to be available all the time.

I have a few concerns, namely, she is paid hourly but she never gets compensated for the work she does on the weekend which accumulates in to many hours of work. I don't know if this was "agreed" on when she signed up for the job, should we look and see? Is it reasonable to expect payment for this time? We both would rather her not be bothered on the weekends however my wife fears she will lose her job if she raises these concerns to her boss. She has brought it up in the past but it has not helped.

The last time she brought the issue to her boss she was told she needed to make herself available and be more accommodating. I feel her being accommodating has overstepped reasonableness. If she takes a stronger stand and she does indeed lose her job would there be any reason to pursue a legal recourse?

Looking for advice whether it is legal advice or just friendly advice.

Thanks

She should file a claim for unpaid wages, including all those phone calls and reading/answering emails on her days off, with the DLSE. It seems obvious that the employer is not going to correct this problem without a "push" from outside.

If she is fired for filing the claim, she should contact an attorney regarding a possible suit for wrongful termination.

Thanks I will help her file a claim then for the hours she worked and has not gotten paid.

Related question, at what point should she "charge" for overtime? I feel if she spends an hour working on the weekend she should certainly get paid for that but what if it's only 5 minutes on an email here and there. That seems to be more common. Should she keep a record of all the little minutes here and there and put those on her time sheet? I guess my question is how is time rounded, if it is and also is there a minimum amount of time that would be consider eligible for payment? If she only answers one phone call on her day off I wouldn't think she should claim that, please advise to granularity of overtime worked.

You can read about "insignificant" time and rounding here (all three sections). I would pay particular note to the requirement for consistency in rounding, if the employer chooses to use rounding.
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_785/Subpart_D.htm

Just for curiosity's sake, what does your wife do (not her title, but her duties) and what type of business is this?

Thank you, I am looking over that information.

My wife is a manager for a large massage clinic chain. She is very good at handling the problems that come up which is why she gets so many calls on the weekend.

OK, just wanted to make sure there weren't any arcane exceptions for her, and I'm not seeing that there would be any.

Theoretically, she probably COULD be placed on a salary of at least $640/week as an exempt employee (under the Executive exemption), but the employer has chosen not to do that. The fact that she is paid on an hourly basis automatically makes her nonexempt, regardless of her duties.

Thank you PattyMD! :)

You're welcome. Good luck to her.

I'm afraid this is not working out very well. My wife talked to her boss who told her that she "will not receive compensation for answering phone calls on her days off". She also said that she will switch my wife to exempt status if this becomes a problem (presumably under the same pay rate). Given this response I'm not sure what the best action to take is. Please advise.

There are advantages and disadvantages to being exempt. However, as long as your wife WAS nonexempt by virtue of being paid on an hourly basis, she was still entitled to overtime for that period. The employer has two options. Overtime pay for overtime worked while nonexempt or go back and pay the exempt salary, including the determination of whether, under the exempt status, pay was docked illegally.


See here for information regarding the criteria for exempt status in California.
http://www.dir.ca.gov/IWC/IWCArticle4.pdf

How long has this been going on?

Thank you Patty. I looked at that link you listed and have a question - do all Exempt salaries state you must be paid at least 2x the full time min wage rate for a 40 hour week? It looked like that would be the case which would be small raise for my wife, which would be good.

This has been going on for a few months. To the employers credit, I don't believe they are aware of how much OT my wife has been doing. They think it is only a few minutes of OT on her days off, even though it is actually hours.

It does for the Administrative and the Executive exempti classifications. But, if the duties test is not met, the employer could pay 10X the minimum wage and it wouldn't make them legally exempt.

What needs to be taken into consideration is, if the employer wants to fix this, is if she, at any time, would NOT get the minimum weekly salary for a reason that is prohibited by law, that would need to be added in to the retroactive pay. The exceptions are noted in this federal regulation.
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/29CFR541.602.htm

For example, let's say she missed 2 hours of the work day for a personal matter and didn't have vacation to make up the difference. Under the Salary Basis rules above, she still must be paid for that time.
This may take some calculations; hopefully, she has all her prior pay stubs.

Relative to the time, just wanted to make sure she wasn't running up against the SOL for filing a wage claim.