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does flat rate mean working 60 hrs w/o pay is ok ?? Oregon

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  • does flat rate mean working 60 hrs w/o pay is ok ?? Oregon

    I am an HVAC installer (install heat pumps, furnaces, gas pipe, ductwork,ect.) residential & some commercial. I started out as an hourly employee for the company that I have worked for (7 yrs). One day the owner decided we would be flat rate. Wasn't too bad at first. We would lose a couple hours here and there. Gain a couple on a few jobs. Since we are not technicians, there is no flat rate book or guidelines to charge for specific tasks. We instead are bound by whatever hours the salesman or owner bids into the job. When those hours run out, we stop getting paid. Problem now is the company is low bidding very large jobs (full remodels, multiple systems) that "suprise", are going way over hours bid for labor. I found out payday, that I ceased recieving pay , a week ago (40 hrs) + a day & 1/2 the prior week. My boss said the only way I can get money is to collect unemployment while I work . Because of the size and complexity, and usual constuction changes and delays, at least two more weeks of work here. Is this flat rate ? Or like I'm an hourly employee who is being treated as a private contractor? Btw, our techs are union, we installers are not. thankyou

  • Pattymd
    replied
    Originally posted by complwyr View Post
    Sounds like OP is really an employee because he is under the control and direction of the employer. But they are paying him as though he was an independent contractor. They may send him a 1099 rather than a W2 at the end of the year.
    I don't get that from the OP's post.

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  • complwyr
    replied
    Sounds like OP is really an employee because he is under the control and direction of the employer. But they are paying him as though he was an independent contractor. They may send him a 1099 rather than a W2 at the end of the year.

    We see this in NC a lot, and it is because the employer is defrauding the IRS, the state Dept of Revenue, and the workers' comp insurance carrier. If OP gets hurt on the job he will be screwed by employer who will claim he is not an employee. And someone could go to jail for cheating the tax man.

    OP, you may want to contact your state's labor dept, wage and hour division, for some guidance. Good luck. You are currently getting screwed.

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  • DAW
    replied
    Keep track of your actual hours worked. Keeping the records at home is best. (What your boss does not know cannot hurt you). And eventually you want to file a wage claim for any unpaid hours, or underpaid MW/OT.

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  • Deacon Dan
    replied
    Yes, worked an entire work week, M-F, 40hrs. Will recieve $0 pay for that week, and any remaining hours/days that we devote to this particular project, since the hours bid for labor on this job have run out. That pretty much sums up his flat rate system. When the bid runs out, we stop getting paid. A big benefit for him, as we are able to out bid other companies for these large projects. Our service techs are flat rate aswell, but they have a rate book for specific tasks that they charge by. Hours we get is just whatever $ he decides to devote to labor from the amount he bids for the entire job. There are no written guidelines. Anyway, I'm 60hrs in the hole for hours as of now. I called in sick today btw, I've pretty much reached my limit on this situation. Thanks again for your replies. And no, flat rate is not normal for my type of work in this industry. Our tasks and conditions vary too much from job to job situation as opposed to a tech or a mechanic.
    Last edited by Deacon Dan; 02-02-2011, 11:59 AM.

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  • DAW
    replied
    Actually I am not sure from the OP's second posting if he understood and agreed with you or not. Anyhow, no pay for time worked is illegal unless the employee is Outside Sales. Which he is not.

    FYI anyone who is interested, CA has a rule that each hour worked stands alone, meaning that each hour worked must meet the MW requirement. The feds use the "average over the workweek" method, and as far as I know, all other states (but CA) follow the federal method. On the other hand, it is not like I have hard researched this for the other 49 states.

    2nd FYI. Minimum wage and overtime are the "default". I am not saying that all employees are subject to MW/OT but I will say that the legal burden of proof is on the employer to show that an exception exists in the FLSA law and the that employee qualified for that exception. Which is why every time a MW/OT question pops up, responders normally try to pin down the actual job duties (and sometimes the industry) before getting too far into the answer. There are something like 100 exceptions in FLSA to MW, OT or both. These exceptions are a function of the actual job duties and sometimes the industry.

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  • Pattymd
    replied
    Right, and I said that in my first response. The OPs follow-up post said he worked an entire week (I assumed that meant "workweek") with no pay at all.

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  • DAW
    replied
    If I can pick a small nit, the employee has to make MW on average for each hour worked during the workweek. It is ok under federal law for some hours to pay less then MW as long as over the entire workweek, the average is at least MW. Federal MW is $7.25/hr, so under federal rules only, if the employee works 60 hours in the workweek, then the federal MW requirement is $435. It would be fine to pay some hours at zero, as long as during the entire workweek, at least $435 (prior to OT) was paid.

    Then there is also an overtime requirement, separate from MW. Under federal rules, that is 50% of the Regular Rate of Pay (average rate of pay for those not speaking fed) for all hours worked past 40 in the workweek. Meaning 20 hours times 50% time $7.25 (or more if more was paid), equaling $72.50. So under federal law, the least the employee could be paid for working 60 hours (and with the job duties described) is $405.50.

    I have no idea if OR has a higher then federal MW or not. OR not being my state this is something I have no real reason to know.

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  • Pattymd
    replied
    You have to make at least MW for every hour worked. Period.

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  • Deacon Dan
    replied
    Easy, workweek (M-F) = 0 $ for 40hrs. Some of us were not sure if we have to maintain minimum wage for the length of the "bid" job, or the work week. thankyou Working for such a long time for no pay just doesn't seem right.

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  • Pattymd
    replied
    No, you're still being treated as an employee.

    All the law requires is that, when your gross pay for the workweek, when divided by the total hours worked, equals at least minimum wage. Of course, overtime pay is still required if you work over 40 hours in a workweek.

    If that is not happening, you can file a wage claim with the BOLI.

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