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  • California Salary EXEMPT position question California

    I do technical training contract work and they call my status "Salary, no Benefits". The contract itself is very convoluted and probably not really legal. I am paid by the company I have a contract with but the work I do is actually work for another large multi-national. There are two issues that I am considering pursuing with the labor board in California:

    1. We are called "Salary No Benefits" and treated as exempt. However we are paid a daily rate only when at a customer site or when traveling to a customer site. So basically day labor. We do not get a regular salary, we are not paid unless we are traveling to a customer or at a customer site. It is common for there to be gaps of weeks at a time with no pay, there have been gaps of a month or more with no pay or "salary". There are about 14 of us around the country doing this work and as far as I know, none of us get a regular salary. For some it is very sporadic. We do often work longer than 8 hours in a day and occasionally more than 5 days in a week (including travel days).

    2. We are often required to do tasks/work for the company when not on assignment and therefore not being paid at all by the company. This includes making phone calls, exchanging e-mails with customers and others and reading and complying with various technical requirements of this field which have to be kept up to date in order to go on assignments (credentialing requirements). Also, making travel arrangements and completing reports after assignments have to be done on my own time for the most part.


    I wanted to know if anyone has any opinions or knows of a similar situation. I did speak with someone at the labor board and they encouraged me to submit claims for all the tasks/work done on days when I am not being paid by the company. So I will probably do that. I am just very curious about the salary/exempt status and if that is worth pursuing at the same time. Also, the company that we actually do work for seems to pretty consistently violate our contract by acting as an employer/manager. They also mislead everyone as to the amount of work available with the intention of keeping people available whether they will be given work or not.

    Thanks very much....looking forward to any feedback...I wanted to know if anyone has any opinions or knows of a similar situation.

  • #2
    Since you have already spoken with the labor board, you should follow their advice.
    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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    • #3
      Originally posted by ElleMD View Post
      Since you have already spoken with the labor board, you should follow their advice.
      I did not speak to them about the first question. That is what I am wondering about if they are allowed to pay someone in this way and call them exempt.

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      • #4
        An exempt employee is not required to be paid for a work week if no work was done during that week. If you are an employee and not receiving work, you could apply for unemployment during those weeks.

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        • #5
          Let's back up a sec since you say you are under contract. Do they withhold taxes from your paycheck and do you receive a W-2 at year end or a 1099?

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          • #6
            Originally posted by ferretrick View Post
            Let's back up a sec since you say you are under contract. Do they withhold taxes from your paycheck and do you receive a W-2 at year end or a 1099?
            They used to pay me 1099 wages until 2011. In 2011 they changed to W2 wages. So from 2011 to 2015 it has been W2 wages. I am contracted by company A who pays me and is my employer, but I do work for company B. The contract is "Salary, no Benefits".

            Company B, who is not my employer gives me assignments. In the last couple of years the work has been up and down and sometimes very sparse. But they pressure us in to being available regardless and they make it difficult to schedule other work.

            I think the previous poster is correct that I need to take the advise of the labor board, which is what I will most likely do. I also have another job that I can try to get more work from for now. I know the best solution is to get other work for a company that does not abuse workers like this and I am working on this.

            I am just curious if others have experienced this and want to understand the situation better.
            Last edited by CherylP; 01-15-2016, 12:50 PM.

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            • #7
              HOME Invasion by employer?

              So this company that I have done contracted work for (a big international company) has switched it up a bit in 2016.

              They are continually assuring me that I will be getting work but they are not giving me work. This has gone on for 3 months and it is pretty clear they do not intend to give me work but they don't want to cancel my contract for a few reasons. So that is one issue.

              Here is the HOME INVASION...this big company is changing the way reports are completed and this requires someone from their offices in Ohio to remotely access my personal computer and activate/install software. I was not told exactly what would be done or even ASKED for my permission. I was told, we were all told we have to do this to get work from them.

              So they remotely accessed my computer and they were able to see my e-mail, which I did not expect at all. I thought they would just see my desktop but they were all over my computer. This happened three times on three separate occasions. They saw things I did not want them to see, it was invasive.

              This computer is my private property and I did not say anything because it is still possible I could get work from these people, though unlikely. Also, I am still kind of in shock about this.

              I am just verklempt that they were able to do this. I feel like someone walked into my house and went through my stuff, actually worse because I have so much personal stuff on my computer.

              I am going to the labor board with this company, they have gone so far beyond the pale. I also spoke to another attorney about the "contract" that is in place for my work with them and they said it was rubbish. Basically they want to make me both exempt and non exempt. They don't pay a regular salary, but they also don't pay overtime and they don't pay for various tasks that are required to be a contractor for them. Like this remote access to my computer, I was not paid for the time it took to do this. But I will report to the labor board, next week.

              Is this legal, what they did and how they did it? Remotely accessing my personal computer?

              Comment


              • #8
                It's legal if you gave them permission to do so. And yes, you gave them permission to do so. (You must have, they wouldn't have been physically capable of doing this without your help.)

                And it's just not possible to remotely access your computer and have access to only certain things. "Remote access" = access to everything.
                Last edited by eerelations; 03-26-2016, 08:26 AM.

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                • #9
                  I work remotely and yes, I've had to give access to my computer to my employer at times for IT reasons. But my employer provided that computer to me and honestly I have a separate laptop for personal reasons. Just one reason why if you work remotely it is better to have a work computer and separate personal computer if you can.

                  And yes, they can make that access a condition of employment if you need access to their software/system.

                  However, I will ask if they asked each time they needed access or if they installed something that allows access all the time? I know with us, it is a one time access that I have to agree to while sitting on my side of the computer.

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                  • #10
                    HOME Invasion by employer?

                    They did not ask. They told me I had to do this.

                    I am contracted through a different company- not the company that accessed my computer remotely.

                    Technically I do not work for the company that accessed my personal computer. They do not provide equipment to any of their contractors. It is not really practical for me to have two computers and I would be purchasing something to benefit them. I don't make enough money from them to motivate me to make that kind of purchase. Also, my work is all travel, so I would have to take two computers with me on my assignments, another reason it's not practical.

                    I did not know what they were going to have access to and they did not inform me of what they would be doing in advance. Other than remotely accessing my computer.

                    My analogy would be that if I open my door and let my employer walk in my house, I am not giving them permission to look anywhere they want or go into my personal papers. Who would reasonably do that? I did not know what they were going to do until they were looking at my stuff.

                    Anyway, you seem to be saying that there it is like fine print somewhere that I allowed this. That is possible, a blurb that popped up that I did not have time to read. But I did not know what they were going to do.

                    During these events (3 occasions) I was not even being paid, but that is something I will take up with the California labor board.
                    Last edited by CherylP; 03-26-2016, 08:48 AM.

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                    • #11
                      You were not forced to allow this; you could have said no.

                      And again, there is absolutely no way they could access your computer without you opening the computer for them to come in. So yes, you knew about it in advance. Your analogy about inviting your employer into your house is a good one - said employer would not have entered your house had you not opened the door and invited your employer to enter.

                      However, your analogy fails when you continue to insist that the access to your computer was supposed to be limited. This is literally not possible, remote access is always an all-or-nothing situation. The minute you give someone remote access to your computer, he/she can view (and alter!) literally anything in there. (Except of course anything that's password-protected - perhaps you should have had the foresight to password-protect those apps you didn't want your employer to see.)

                      This is nowhere near a home invasion type of situation. This is more like an I'm-going-to-invite-you-in-and-let-you-do-anything/go-anywhere-you-want-and-after-you-do-what-I-allowed-you-to-do-I'm-going-to-change-my-mind-and-decide-that-I-feel-violated type of situation.

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                      • #12
                        Just noticed something...it's been more than two months since your first post and you still haven't gone to the DLSE?

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                        • #13
                          Sorry to disappoint you.

                          However, your analogy fails when you continue to insist that the access to your computer was supposed to be limited. This is literally not possible, remote access is always an all-or-nothing situation. The minute you give someone remote access to your computer, he/she can view (and alter!) literally anything in there. (Except of course anything that's password-protected - perhaps you should have had the foresight to password-protect those apps you didn't want your employer to see.)

                          I did not insist on anything. I did not know what they were going to do, that is my point. Not until they were looking at my stuff. I didn't know what they were going to do. I did this because they have been telling me they will still be giving me work and I didn't want to completely sever the relationship in case I need the income. They didn't really give me a choice, if I want to get work from them.

                          That is also the reason I have not gone to labor, yet. I have also been picking up shift work and looking for other work and those are my priorities.

                          I suppose I am a big idiot for putting up with this as long as I have. I think this board is probably not a good place for idiots like me.

                          Sorry to impose on you. Please don't feel you need to trouble yourself with a response. I feel bad enough already.

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                          • #14
                            Ignorance is not a defense. You allowed them in, you have no right to be angry because they did go in.

                            No matter what you say, the fact that you haven't filed a claim yet just means you are not really concerned about your "issues".

                            And this board is fine, you wanted accurate legal information...and you got it. All is well.
                            Last edited by eerelations; 03-26-2016, 04:13 PM.

                            Comment


                            • #15
                              You don't have to be paid for the time it takes someone else to work on your computer unless you were required to be right there the whole time while they set up everything. If what they installed had nothing to do with email and the one installing the program went through your emails and read them, I'd complain to the company, but the labor board does not govern this at all. When installing and setting up programs it is necessary to go into several places on the computer and adjust settings and such. It can not happen without you knowing and giving them access, which you did.
                              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.

                              Comment

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