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Wrongful Discharge by employer Montana

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  • Wrongful Discharge by employer Montana

    Last Tuesday morning June 19, 2007, I was talking to my supervisor on the phone and said that if I felt well enough that would come in and help with some painting up on the 4th floor. At no time did I tell her that I would be there for sure and it would be hours donated, not paid. Well, Wednesday turned out to be a lousy day for me healthwise and I couldn't go in. Since I hadn't told her that I was coming for sure I didn't call. Which, I guess it would have been a simply cortesy if I had.

    On Friday when I arrived at work 2 hours early she stated that she had tried to call me a few times and had not been able to get through to me. Have dial up internet and am on it alot. She proceeded to tell me that she was worried about me because I hadn't shown up on Wednesday to volunteer. Then she told me that she had also tried to call me to see if I would stay over for a while on Saturday morning because the usual employee was going to be late. Then the third thing that she wanted to call me about was the fact that she didn't need me to come in early to volunteer a couple of hours for her, that she in fact would have been paid for, because she had too much to do.

    When she told me she didn't need me, I went out into the yard and started weeding. Since I was there, thought I would atleast make myself useful. After all I was volunteering my time.

    My only scheduled work day was Friday from 3:45 PM - 7:45 AM Saturday with only 8 hours being paid at minimum wage. On Saturday morning she arrived at 8:20 AM, gave me my last paycheck and said that she was letting me go because I was just not available enough to her. At no time did I agree to work for 16 hours for $53.00 and then make myself available to her at will.
    No where in the job description did it state that I was to hang around my house and wait for her to call me. I would have never taken the position. I felt like I was donating 8 hours a week and that was enough.

    When I asked her for a letter signed by her stating the reason for my discharge, she said I didn't need one. She stated that I was still in my 90 day probation and that it just didn't work out for her. She also stated that she felt I didn't need the job anyways and that another employee really needed the money. That particular employee already works 64 hours a week for 32 hours pay and is forced, due to her particular circumstances to donate hours in addition to the 32.

    Granted I don't work because I need the money. Lots of persons work because they want and like to. I felt like I was doing a community service and felt good about it.

    Unfortunately this has made me feel very bad about myself. I really liked my job.

    I called her again on Monday and requested a letter of termination. She still won't provide it. What can I do to get her to provide it? Does she have any legal grounds to withhold the letter? I am the third person that she has fired in the last 3 months, she also got rid of a manager that had been there for 16 years. Fired the yard service that had been there for 11 years. I particularly wanted the letter in order to approach the board of directors with the situation.

    Did she have just cause to fire me?

  • #2
    Wrongful discharge by employer Montana

    Thank you for taking the time to set me straight on the laws, with regards to the termination.

    In response to your question on how time is donated. Montana states minimum wage is $6.15 per hour. If you work a 16 hour shift and you get paid $53.00 for the 16 hours you would have to be donating 8 hours of the shift right? And, yes my guess is that it is a non-profit organization. The manager is salaried and works 40 hours per week, receives vacation pay, health insurance, accrued sick days.

    The other three employees, one works 4 shifts that are each 16 hours long, and is paid $56.00 per shift. The second employee works 1 shift that is 48 hours and is paid for 4 shifts at the rate of $60.00 per shift. Then the 3rd person works one 16 hour shift. In other words you are there, but supposedly sleeping or doing your own thing for 8 hours of every shift. Your assigned chores easily take up the full 8 hours that are paid. Your only responsibility during the other 8 hours is to be fully available to take people in and assign them rooms, get them settled, take phone calls, and be fully responsible for the business operations. These individuals have no benefits at all. No health insurance, no accrued sick leave, no accrued vacation time.

    If the time is not paid, then wouldn't it be considered donated? After all you cannot leave the premisis. If not donated then what would it be considered please?


    The extra 8 hours of each shift is referred to as "sleep time" by the employer. There is a seperate apartment within the building for the use of the employees and yes there is a bedroom with a bed. To the best of my knowledge that bed has not even had sheets on it for over a year.

    Again I want to thank you for the time you took to respond to my post.

    Comment


    • #3
      Originally posted by Zoee1957 View Post
      Thank you for taking the time to set me straight on the laws, with regards to the termination.

      In response to your question on how time is donated. Montana states minimum wage is $6.15 per hour. If you work a 16 hour shift and you get paid $53.00 for the 16 hours you would have to be donating 8 hours of the shift right? And, yes my guess is that it is a non-profit organization. The manager is salaried and works 40 hours per week, receives vacation pay, health insurance, accrued sick days.

      The other three employees, one works 4 shifts that are each 16 hours long, and is paid $56.00 per shift. The second employee works 1 shift that is 48 hours and is paid for 4 shifts at the rate of $60.00 per shift. Then the 3rd person works one 16 hour shift. In other words you are there, but supposedly sleeping or doing your own thing for 8 hours of every shift. Your assigned chores easily take up the full 8 hours that are paid. Your only responsibility during the other 8 hours is to be fully available to take people in and assign them rooms, get them settled, take phone calls, and be fully responsible for the business operations. These individuals have no benefits at all. No health insurance, no accrued sick leave, no accrued vacation time.

      If the time is not paid, then wouldn't it be considered donated? After all you cannot leave the premisis. If not donated then what would it be considered please?


      The extra 8 hours of each shift is referred to as "sleep time" by the employer. There is a seperate apartment within the building for the use of the employees and yes there is a bedroom with a bed. To the best of my knowledge that bed has not even had sheets on it for over a year.

      Again I want to thank you for the time you took to respond to my post.
      Health insurance, sick pay, and vacation time are all benefits that the employer does not necessarily have to give its employees.

      Are you working the entire 16 hours you are at your job? An employer can't require you to be there for 16 hours and not pay you for your time. I can see if they allow you to come and go when you please and the time you actually work only adds up to 8 hours... but if you're required to be on the premises and work at the drop of a hat, that must be compensated time. As far as I know it doesn't matter if they're non-profit or not.

      I also find it hard to believe your friend is "donating" 32 hours. If they are required to be at work for 4-16 hour shifts, they should be getting paid for 64 hours.

      I'll wait for someone else to come along and confirm... or prove me wrong.

      Comment


      • #4
        Wrongful Discharge by employer Montana

        Thank you for responding. I am not certain how they are getting away with "not" paying employees for all the hours they work. It was my opinion that if your there and required to be there, you should be paid for all hours that you work. I have worked for the better part of 40 years and this is a first for me.

        Both of the other employee's are lifetime friends of mine. The one that works the 64 hours and gets paid for 32 hours is also required to "volunteer' additional hours to do things like paint ceilings, mow the lawn, weed the garden, fill in for the "full-time" manager that is paid for every hour she works. The full-time manager is actually receiving the pay for the hours that my friend is working for her.

        My other friend that works there starts her shift at 7:45 AM on Saturdays and gets off at 7:45 AM on Monday morning. Although she is required to be at the job for 48 hours, she is only paid for 32 hours.

        Since the subject has changed here, from wrongful discharge to wage descrimination I wonder if I shouldn't start a new thread?

        Thank you for you reply.
        Cassandra
        Last edited by Zoee1957; 07-19-2007, 05:01 AM.

        Comment


        • #5
          Speaking on behalf of non-profits, we are not exempt from labor laws, especially the requirement to pay people for all hours worked! (the exception being for Exempt people like me who stay late)

          What kind of organization is it anyway? My old company had "sleep hours" too, for overnight staff in residential programs. But the staff were paid for the sleep hours, just at a lower rate than for "awake hours," and never below min wage.

          I can't imagine anyone accepting or staying at a job under those conditions.

          Comment


          • #6
            wongful Discharge by employer Montana

            Actually its a not for profit and I am NO longer there. Was told that I am just not available enough to volunteer enough time at the house to make the manager happy and was let go. I have the full job description from job service from when I applied for this position, not once does it mention that I would have to set by my phone so that I could be called to either come in a volunteer what the manager qualifies as "enough" volunteer time or that I would have to agree to be on 24 hour call 7 days a week to volunteer to take other persons shifts for no pay.

            I may be gone, but feel like they are doing a great injustice to my friends by not paying them for the hours that they are required to work.

            Your probably asking yourself, well why did she take the job in the first place. Well I will tell you, the friend that works four (4) sixteen hour shifts for 32 hours pay was working five (5) 16 hour shifts and being paid for 40 hours. Plus having to "volunteer" additional time. She got into trouble about a year ago and is on probation for a minor offense. All the manager has to do is call her probation officer and state that she is refusing work. Then she is in immediate danger or violating her probation. The manager knows this, and takes full advantage of it.

            She asked the manager to cut her regular scheduled hours or her "volunteer" time back. The manager agreed to cut it back one "paid" shift if she could find someone. Once the manager placed the call to the Job Service, I immediately applied for it. I am retired after a 25 year career with Bechtel Corp. as, and you will find this funny, a payroll accountant. I didn't need the money or the job, but my friend desperately needed both some time off and to be able to keep her job. Plus, I really enjoy getting out of the house for a change of scenery. Its nice to feel like you still contribute to society.

            Unfortunately, what can seem like a perfectly peaceful second 8 hours of the shift. You know your "sleep" time can turn upside down very quickly. The hospital can call at any moment with either family members, or medical staff that needs to come into the house immediately. When they arrive you will need to get them settled, more than likely get them something to eat, and above all be available just to listen to their problems. None of this is the point though, you are there to serve and serve you will, thats if you have any compassion left.

            My entire point in asking if this is legal, is that I still have 2 friends working there, that I believe are being critically abused wage wise. Friend #1 cannot quit the job without serious repercussions. Friend #2 desperately needs the money and its her second job. She works a regular 40 hour week before she puts in her 48 hours at the house, has two medically needy children and a totally disabled husband and is doing her darndest to care for them.

            Obviously neither of these individuals is in the position to rock the boat there. I am no longer there so what does it matter if I try to find some help for these individuals if in fact it exists. Its hard for me to believe that our state and/or federal governments would find this acceptable.

            Unfortunately, even with well over 25 years of payroll experience, it was all union payroll. Not only did we meet and or exceed all state, federal and foreign payroll guidelines but adherred strictly to all of the negotiated union wage rules as well.

            Four months ago, this is before I started. The old manager had given these two individuals raises and allowed them to accrue 3/4 of a day sick leave and paid vacation time per month. The new manager took the raise's and all accruel of sick pay and vacation time away. Simply told the employee's that the board of directors hadn't approved them. Yet board members sign the paychecks?

            Again, anyone that can point me in the right direction to find the laws to help my friends with this situation, your time will be greatfully appreciated.

            Thank You
            Cassandra
            Last edited by Zoee1957; 06-25-2007, 04:33 PM.

            Comment


            • #7
              You should remove the name of your ex-employer from your post. It is against the forum rules to list specific entities here. It's for your safety and the safety of your friends who also worked there.

              Okay, before I forget to ask, were you a part of the union? Are you friends a part of a union? The answer to this may make a HUGE difference in how you work with this.

              If you're not in a union:

              What you want to do is contact Montana's department of Labor & Industry. This is the link to the page that gives you numbers and email addresses:

              http://erd.dli.mt.gov/laborstandard/contactus.asp

              Then, tell your friends to do the same thing. Get a claim rolling for all the time you had worked and didn't get paid for. Hopefully you have records or witnesses of when and how long you worked. And when I say hours you worked, I mean hours that they required you to be at work (sleeping or not) or any time you were required to do work-related things.

              Your friends shouldn't be retaliated against for making a claim, but if they are, then their employer will be in even more trouble because that is illegal.

              I have to say that it is very disappointing to know that an employer as large as that is not paying employees the way it should, when it's so painfully obvious that what they're doing is illegal.

              If you have any more questions, let us know. There are probably more members here who can answer more thoroughly than myself.

              Comment


              • #8
                Julie, thank you for informing me that I needed to edit out part of my post. I have taken care of it and appreciate your insight and time.

                No we were never affiliated with a union.

                Thanks again!

                Cassandra
                Last edited by Zoee1957; 07-06-2007, 04:29 PM.

                Comment


                • #9
                  Good luck with everything!! Hopefully you and your friends will get what is rightfully yours!

                  Keep us updated if you remember!

                  Comment


                  • #10
                    Again Joe your time is always valued. Do I need to hire an attorney to send a letter to request arbitration or however you spell that?

                    Thank You
                    Cassandra
                    Last edited by Zoee1957; 06-25-2007, 06:25 PM.

                    Comment


                    • #11
                      There I go, getting called a "payroll clerk" again.

                      Honestly, I really can't add much to the previous responses unless I know exactly what your job duties were. Can you also provide details of how you were paid in an average work week?

                      Unfortunately, the state DLI (their DOL) site is down at the moment, so I can't check on whether a "termination letter" is required.
                      Last edited by Pattymd; 06-26-2007, 04:27 AM.
                      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                      Comment


                      • #12
                        Patty

                        Thank you for replying.

                        Here is a copy of the job description that was posted at the Montana State Job Service.

                        Open until filled. Weeknight employee is responsible for operating and managing the. "The name of the business was here and I removed it", in accordance with the policies and procedures. Will be responsible for promoting a positive progressive image of the Home, register guests, collect room fees, keep written log of the shift's activities, keep home neat and clean, record memorials, donations and acknowledgements, record house statistics, assist with fundraising activities, supervise volunteers & perform other duties as assigned. Must have a high school diploma or equivalent. Employer prefers some college, one to two years experience in counseling, health care or managing a group home & fundraising experience. Must possess good human relations skills, communicate effectively, be a good listener & have knowledge of Access, Excel and Word. Position is part-time, 1 evening shift defined as 3:45 pm to 7:45 am, ideally Friday but employer can be somewhat flexible as to which night, with an average of 8 hours sleep time. Wage is $53.00/shift.
                        Open Date 4/11/2007 Close Date
                        Experience
                        Education Degree Required High School Diploma

                        Skills
                        Shift Swing, Graveyard
                        Availability Part
                        Days Off Mon, Tue, Wed, Thu, Sat, Sun
                        Openings 1 Work Schedule

                        Again thank you for your time!

                        Comment


                        • #13
                          For some reason, I wasn't thinking. You may be considered exempt by the federal guidelines (I don't know for sure... I'll let Patty handle that).

                          BUT, even if you are exempt, you are still not even making the federal minimum of $455 a week that must be made by exempts. You would need to work over 8 shifts at 16 hours each to reach that minimum. In fact, if you're only being paid $53 for working 16 hours, you're not even making minimum wage.

                          I still suggest calling the state's DLI and speaking with someone about it. Whether you're exempt or non-exempt, they still owe you money.

                          Unless there's a caveat I'm missing that involves the type of work you did...

                          Comment


                          • #14
                            What type of home is this? Is it a hospice? It's hard to tell from the posts.

                            Anyway, unless the employees are Exempt (which from the other posts, it looks doubtful) I don't understand how people can be required to work for free . The situation with the OP's friend actually sounds like extortion (work these crazy hours for free or I call you PO and tell him you're refusing to work).

                            Again, even if the donated hours are "sleep hours" they should be paid for sleep hours, at least at minimum wage.

                            Is there some strange Montana law allowing indentured servitude?

                            Comment


                            • #15
                              Originally posted by joec
                              Patty what about this part ?:

                              I never heard of any thing like it. Donated time???
                              JoeC
                              Joe, I believe the OP was told that she needed to "donate" her time by her employer, when in fact she was still working as an employee and needed to be compensated for her work. I think the employer just wanted an easy out...

                              I've never heard of "donated time" either.

                              Comment

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