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  • Assignment transfer California

    My husband works in the construction industry. After a lengthy period of unemployment (the company went out of business) he was hired to work at a job site 70 miles away. Previously, he was a foreman earning over $60k, plus bonuses and full benefits. His current job only pays $16 an hour with no benefits. He has to commute 80 miles each direction to get there.

    The job is horrific. The owner/manager perpetually demands that my husband perform the duties of a foreman without the compensation. If work is cancelled due to weather, supply delays or holidays, my husband is not paid. However, he has never been paid for any kind of overtime. He works overtime but the owner/manager they do not "clock in" on the job site and cannot prove that he was required to work extra hours. He has to supply his own tools. When they get broken (or stolen) we are just out the money. If he mentions that a particular assignment is outside his scope of work, or that he is not being adequately compensated, he is reminded that California has a 12% unemployment rate. "If you don't like it, leave."

    Today he was notified that the next job site is in 180 miles away. That is an extra 100 miles each direction. He is expected to commute there, at his own expense, or quit. There is no possible way that we can afford for him to drive so far, nor can we afford the extra meal away from home.

    If he refuses the assignment, will he qualify for unemployment? He is loathe to not work but this situation has become intolerable.

  • #2
    You raise a number of issues.
    - If the employee refuses the assignment, getting UI is questionable at best. Also it is very much CA-EDDs decision, who does not care even a little bit about what anyone on this website says. And no one on this website knows what story the employer will tell. UI is always less then a sure thing, especially if any employee action looks like quitting. It is always better for UI purposes to look for another job while you still have the current job. If the employer fires the employee for looking elsewhere, THAT generally qualifies for UI.
    - In CA, if the employer wishes to claim that the employee is an Exempt supervisor (not subject to paid overtime), then among other things, the employee must be paid a salary of at least $640/week. Which is not happening based on what you have said. So, the employee can file a wage claim with CA-DLSE for unpaid overtime.
    - And there is in theory legal recourse for being terminated BECAUSE a wage claim was filed.
    - The long trip to various job sites is legally strange, especially in CA. There is a very clearly written federal law (Portal-to-Portal Act) that says basically that commutes are not hours worked. Clear law with clear intent. Turning travel time into hours worked basically starts with the proposition that the travel is NOT commuting. And this is a 1940s law, so basically all possible arguments have been tried before. Having a shifting job site legally complicates things. Being in CA complicates things a lot, because CA uses a somewhat different rule set. The best I can tell you is that the longer then normal trip to the job site MIGHT be hours worked in CA. The employee needs to file a wage claim. It works or it does not. I am going to suggest that you download the following, key word search "travel" in the document, and carefully read all related references. At the end of the day, no one's opinion but CA-DLSE's counts in this area.
    http://www.dir.ca.gov/dlse/Manual-Instructions.htm
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      Thank you.

      I know that commute time is not compensable. While I didn't object to the 80 mile commute, 180 miles is simply intolerable. His shift is from 7-4, which includes an unpaid hour for lunch. In order to arrive at 7, he would have to leave home at 3:45. Since commutes are never ideal, he would have to allow a little extra time in case of traffic. That means he would have to be on the road by 3:30 at the latest. If he left the minute his shift was over, and there was no traffic, he would not get home until 7:30. essentially, his 8-hour job would consume 16 hours of the day.

      His net income is only $575 per week. The gas for that kind commute would cost at least $300. (180 miles each direction, 5 days per week = 1800 miles. His truck gets 20 mpg. That is 90 gallons per week @ $3.35 per gallon.) After paying for gas, his "income" would shrink to $275 per week.

      I definitely agree that it would be ideal to find a new job before leaving his old one. If there were any, he would not be in this situation. It is incomprehensible that his unemployment claim could be denied for refusing this transfer. I guess if that happens, he can just find a minimum wage job. Without the cost of commuting, his net income would actually be higher. Sad.

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