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No pay for wait time - Is this legal?

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  • No pay for wait time - Is this legal?

    My wife works for a Spa franchise. Customers can either book appointments or walk-in. Most of the appointments are pre-booked, with almost no walk-ins. Customer sessions are typically 1 hour long. The franchise was recently sold to a new owner/operator. The previous owner allowed the staff some flexibility with the schedules. They are opened for business from 9am to 10pm. My wife would work, for example from 10am-3pm, 5 hours. She gets paid only when there is a customer booked for the hour. They pay her an hourly rate, plus customer tip. If the hour is not booked, she gets zero. If the customer cancels less than 5 hours before the appointment, she gets her hourly rate. However if she was scheduled 10am-3pm, and nobody booked the last hour, say from 2pm to 3pm she would leave for the day, since she would not be getting any pay for this hour and the likelihood of a walk-in is low. Another example, if she didn't have a booking at 9am and her first booking was at 10am, she was arrive at 10am even though the business opened at 9am.

    The new management now wants all employees to be there during all operating hours, regardless of whether all the hours are booked or not. He has introduced a time clock, and now all employees are required to clock-in/clock-out. Theoretically, if there are no bookings (and no walk-ins) an employee could work and entire shift and get zero. This scenario is possible on bad weather days. This does not seem right to me. For example, even a waitress that depends on tips will usually get some sort of hourly rate. My thinking is that if the owner is expecting employees to just sit and wait for either a booking or a walk-in, they should compensate the employee for that time. So my question is, is this legal? To expect employees to wait for a booking and not compensate them somehow for their time? It would seem logical that the employer should be compensating them something for this time , otherwise they are working for nothing.

  • #2
    Just to confirm - your wife is an employee and not an independent contractor? She is employed directly by the spa and received a W2 at the end of the year?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      Here is a link to help determine if IC & not an employee.

      https://www.irs.gov/Businesses/Small...ed-or-Employee
      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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      • #4
        Employee on a W2

        Originally posted by cbg View Post
        Just to confirm - your wife is an employee and not an independent contractor? She is employed directly by the spa and received a W2 at the end of the year?
        Yes, she is a part-time employee on a W2. In fact, the employer imposes very strict rules regarding this. For example, she is not allowed to work for a competitor within a specified distance of her current work location if she chooses to quit her job, for a specified time (2 years I think). I can't imagine they could enforce this on an independent contractor.
        Last edited by David_D; 10-18-2015, 01:55 PM.

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        • #5
          Class Action law suit

          I did a little googling and found out that their is actually a class action suit pending against this employer in California based on what I've explained in my earlier post. I know that labor laws differ from state to state, so I'm not sure how this works in NJ. According to the suit, the work that is performed by the therapist is considered "piece meal" work and each session is paid a "piece meal" hourly rate. This average of the piece meal wages is supposed to compensate the employee at the minimum wage when applied to all hours worked for the shift. However, this does not always work out. If you are scheduled for a shift that is 8 hours and only perform 4 piece meal hours of work, the 4 hours of pay would be less than minimum wage when averaged over the 8 hours worked for the shift.

          http://ckslaw.com/class-action-cases/massage-envy/

          How does this work in NJ?

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          • #6
            NJ Dept of Labor

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            I found this at the NJ Dept of Labor website under subchapter 4, "Beauty Culture Occuptations".

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            • #7
              She can file a complaint with the NJ DOL.
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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              • #8
                The primary wage and hour laws in the US are Federal. A state can provide additional protections, but cannot take any away that are offered by the Feds.

                If she is an employee and she is required to be on the premises, then that is work time. No question about it. The only reason I hesitated is that I know that many spa workers are actually IC's who rent the use of the facilities, and the law is different for them. But since she is an employee, what the employer is doing is not legal.

                She wants to file a complaint with the state DOL. Not the Federal, even though she is covered by Federal law. The key is that by what you have posted, NJ requires that the wait time be at the regular level of pay. Whereas Federal law only requires that she be paid at minimum wage. If the number of hours she is required to be on site, when divided into her gross pay for the week, comes to Federal minimum wage or more, the Feds will consider that she was paid correctly under Federal law and they will not support state law. So she'll do better filing with the state.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                • #9
                  Filing with NJ DOL

                  The NJ DOL website provides guidelines and instructions for filing a complaint, as well as instruction for filing anonymously. I will need to discuss with her if she wants to pursue this, and what approach to take. She informed me that one of the massage therapists was terminated because he left the premises during an unpaid wait time period. That is just so wrong. The owner has several of these franchises in the area, each employs around 40 employees and the same rule apply to each of the spa's.

                  Thanks all for your feedback.

                  David

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                  • #10
                    It would however, be legal to terminate someone for leaving when they are expected to be at work. There are remedies if employees are not being paid properly, but that does not entitle employees to come and go as they please. It is great that the former employer was flexible with shifts but the law does not require that so her new employer can expect employees to be there as scheduled. If there are walk-ins, it makes sense that at least some employees would have to be on hand when they do not have appointments scheduled.
                    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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