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Temp Agency Bogus 'Premium Pay' Policy California / WAGE ENTRAPMENT

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  • Temp Agency Bogus 'Premium Pay' Policy California / WAGE ENTRAPMENT

    I just started a temp assignment for 3 weeks at the stated rate of $20/hr.
    However, upon signing all paperwork with my temp agency- they slipped this lovely little form in :

    'Dependability and Premium Pay Policy'
    [Agency Name] Dependability and Premium Pay Policy rewards you for good attendance and communication while you are on assignment with [Agency].

    "Satisfactory attendance" includes staying through the completion of your assignmentl; calling us at least 90 minues prior to being late or missing your schedule work assignment; and checking in with us at or before the endof every assignment.

    If you are offered an assignment but you cannot commit to the condition (hours, pay, location, length of assignment, etc.), please DO NOT accept the assignment.

    Why does this matter? It matters because our customers are depending upon us, and you, to get the job done for them. If you are not at work when expected, and we have not had a chance to replace you with a new associate, we may lose this customer forever.

    You are guaranteed an hourly base wage of the minimum wage in your jurisdiction. You have the opportunity to earn the extra quoted premium for your assignment if you co mply with our policy regarding satisfactory attendance (as defined above) EACH DAY during a given workweek.

    If you do not have satisfactory attendance EVERY DAY during a given workweek, you will not be eligilbe to receive the premium for all hours worked for which you have not yet received a paycheck. Here is an example: If you abandon your work assignment by walking off of the job, or by not showing up and not having notified us, you will only be paid the base wage for all hours worked during the current workweek. If you abandon your assignment on a Thursday or Frifay, ALL pay for the week will be at the base wage.

    Fortunately, the majority of our associates are highly dependable and [Agency] in turn strives to treat everyone with courtesy, dignity and respect. We understand that there may be times when 90 minuite notice is not feasible; however, [Agency] is the sole judge of what is considered reasonable notice in special circumstances. Therefore, it is always best to call us as soon as you know that you must miss work.

    By signing below, I acknowledge my understanding of [Agency]'s Dependability and Premium Pay Policy and how it aplpies to me. "


    I was almost SICK when I read this form in its entirety. Since I work in San Francisco, minimum wage is $10.24/hr. I have an email from my Agency stating my rate of pay would be $20/hr. Is this a DIR or a DLSE issue? This seems HIGHLY ILLEGAL. Any help would be appreciated. I feel like I am under Entrapment.

  • #2
    I'll let the hard core HR folks answer with more details, but it seems reasonable to me. They don't want to lose a client because of someone who can't show up for work on time. When I was a bus driver, we had to call in sick 1/2 hour before report time, or get a 'miss out'. We'd also get a miss out if we were more than 59 SECONDS late to report to dispatch in the morning. 6 miss outs in 6 months meant we were fired, and the union couldn't stop it. When the stakes are high, you learn how to get there on time. When you've got 4 or 5 miss outs, you learn to get to work more than 1/2 hour early, so that if your car breaks down or something, you still have time to call in 'sick'.

    Jobs are tight, especially in the Bay Area. Yeah, I know, Bart can be late (although I never 'got' this, you show up at Bart, get on the next train and get off at your stop. I don't care if the train you're on should have been there an hour earlier, so long as a train comes along and picks me up around the time I get to the station, and takes me to work.)

    So, it seems reasonable to me that if you're calling in sick, you give them enough notice to get someone to sub for you. As long as they're paying you minimum wage, it sounds legit. But like I said, I'll let the HR folks be more specific.
    I am not an attorney, and don't play one on TV. Any information given is a description only and should be verified by your attorney.


    • #3
      I can address some of your issues. You might need to talk to a local attorney on some of the issues.
      - Statutory labor law requirements imposed by the government such as minimum wage and overtime are third rail issues. There is nothing the employer can do to make them go away.
      - Contract law or common law or other agreement related issues are complicated, more complicated then a simple yes/no answer usually. The chances that your email with the job offer is a legally binding contract is pretty close to zero because offer letters legally are almost never legally binding contracts, but feel free to take your email to a local attorney for another opinion.
      - The agreement you cited from may or may not be a legally binding contract. Talk to a local contract attorney if you want to be sure.An agreement which pays MW/OT, plus a conditional non-discretionary bonus payment based on actual job performance can be legal if correctly written. CA is a state where care in the writing the agreement is mandatory.

      This is a labor law website, not a contract law website. I am skeptical that there is such a thing as a meaningful contract law website because any answer would require reading every word from every document, then researching against relevant case law as well as statutory law. Very state specific, very specific to the exact wording of all documents. If you want to know what CA-DLSE thinks about agreement specific labor law, go to their website and download their manual. But all roads will still end with taking all documents to a local contract law attorney for review. Which is probably not what you want to hear.
      "Reality is that which, when you stop believing in it, doesn't go away".
      Philip K. **** (1928-1982)


      • #4
        further details

        I should clarify a few things:

        -I am an hourly, accounting/finance subcontractor, not paid by piece rate or commission/sales etc.

        -I am not so concerned about being late/sick etc. I live in the City and walk to work.

        -I was curious about DLSE, due to a potential wage claim for the difference in hourly pay for every hour worked, in a 'final paycheck' scenario if say- I got a better offer prior to the assignment ending, and chose to resign as a result. What would become of my final week of pay in that scenario?

        -I have a industry-typical email from my agency,that was sent to me as confirmation of my assignment details, including a 'confirmed pay rate'. This was supplemental information only, for this discussion. Not concerned about contractual integrity etc, in this specific case.

        Thank you for all of your help.

        I will direct some of my previous queries to DLSE as well as local counsel.


        • #5
          It is legally possible to have compensation policies that pay MW/OT with a performance based bonus. I have worked for companies that not only have had such policies but have sucessfully legally defended such policies. However this is VERY specific to the exact wording of all relevent documents in their entirety. Especially in CA.

          The vast majority of offer letters are not legally binding. It is possible for a really stupid employer to write an offer letter that is legally binding. Not likely, but a very small possibility exists. I have worked for employers with in house legal departments who routinely reviewed any changes in the "form" of offer letters to avoid this, although the HR department generally thought Legal was being over cautious since it is legally very difficult to cross that line with an offer letter.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)


          • #6
            A final paycheck would be no different than a regular paycheck. If your base rate is MW and they pay you MW, they have satisfied the law. If you stop showing up, you only get MW for those hours you did work as you did not complete the full week as required.

            In any event, I'm not sure how this is entrapment. At most you would have a wage claim violation depending upon how it was handled by the employer.
            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.