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  • Temporary Job Question

    Hi everyone, I've been trying to find an answer to this online, without success, so I figured I would try here.

    My honey works for one of the NM school districts as a temp, in food services. She is paid bi-monthly, and every 2 weeks she is required to drive to the district office and turn in her time sheets. Regular employees do not need to do this. I have found she is not entitled to mileage reimbursement, but she is not paid for the time spent traveling, nor was she paid for required out of hour's instruction. So the obvious question is, should she be paid for this?

    Also when she was hired, she was told that she would have a 30 day trial period, and after that be placed in a permanent position. The 30 day period has come and gone, and when she asked about a permanent position, she was told she could not be placed because that would require her being paid at a higher rate! As I already have her covered under my benefits she is really only looking for job security. That higher rate answer just does not sit right with me. Anyone have any input about that?

    Thanks so much,

    Greg

  • #2
    This is an oversimplication but there are basically two types of labor law. Statutory/regulatory labor law are actually laws like FLSA which create actual rules like minimum wage and overtime. Statutory law is imposed by the government on the parties. It is generally very clear and well understood. The other type of law is contract and common law. Two different but somewhat similar things. Basically the parties make an agreement, one side fails to file up to the agreement, they go to court, etc. These sort of remedies are extremely specific to the exact wording of the agreement, which state the agreement was made in, and sometimes, which judge gets choosen. Looking at your two issues.
    - An argument can be made that if the employer is requiring the employee to drive to a different location to hand in the time sheets that this is indeed hours worked under the FLSA law. Now me saying this is not the same thing as a court or administrative agency saying this, but it is a reasonable argument. The employee would also want to be able to show that they exhausted all reasonable alternatives because the employer will likely claim that this was all the employee's idea.
    - Regarding the 30 days to become permanent, this is not remotely a statutory/regulatory issue. An argument could be made under common law that something has happened but this would be an extremely weak argument. Sort of as likely as winning the lottery. The employee could take this to an attorney (who will likely respond with a very pained look), or a small claims court action could be filed, but the chances are beyond poor. Basically finding a judge who thinks that the employer's representive in court reminds them of their ex.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      Being permanent does not give job security. You can be termed as easily whether you are permanent or temp (outisde of any contract).

      Comment


      • #4
        Being permanent does not give job security. You can be termed as easily whether you are permanent or temp (outisde of any contract)

        Thanks HR, I understand about anyone being termed for cause. The security would kind of come from any layoffs would go first through temps, then onto the perms. I know that might not mean much, but it does help when there are SO many temps. As with any employer they are just trying to save money (in bennies) wherever possible, which I understand also.

        Comment


        • #5
          This is an oversimplication but there are basically two types of labor law. Statutory/regulatory labor law are actually laws like FLSA which create actual rules like minimum wage and overtime. Statutory law is imposed by the government on the parties. It is generally very clear and well understood. The other type of law is contract and common law. Two different but somewhat similar things. Basically the parties make an agreement, one side fails to file up to the agreement, they go to court, etc. These sort of remedies are extremely specific to the exact wording of the agreement, which state the agreement was made in, and sometimes, which judge gets choosen. Looking at your two issues.
          - An argument can be made that if the employer is requiring the employee to drive to a different location to hand in the time sheets that this is indeed hours worked under the FLSA law. Now me saying this is not the same thing as a court or administrative agency saying this, but it is a reasonable argument. The employee would also want to be able to show that they exhausted all reasonable alternatives because the employer will likely claim that this was all the employee's idea.
          - Regarding the 30 days to become permanent, this is not remotely a statutory/regulatory issue. An argument could be made under common law that something has happened but this would be an extremely weak argument. Sort of as likely as winning the lottery. The employee could take this to an attorney (who will likely respond with a very pained look), or a small claims court action could be filed, but the chances are beyond poor. Basically finding a judge who thinks that the employer's representive in court reminds them of their ex.

          Thanks DAW, You know what it was about traveling for the time sheet and training, I have never run into a situation where an employee would need to travel on his own time to do either of these things. As far as alternatives, my honey has already asked about fax and emailing the sheet, both were rejected, and forget about phoning them in. I was actually interested if a situation like this is located somewhere in the New Mexico laws, or would it be considered a federal issue? Being in the tenuous situation of a temp employee, you don't want to make too many waves, or they just might let you just drift out to sea, as it were.

          I totally agree about the winning the lottery comparison. I'm such you can appreciate what it's like when you first get hired and are going through that trial period, and then after that period being given some flaky reason as to why you cannot be made permanent. She even asked her local supervisor if her work has been sub-standard, and was told she is doing fine. So in the back of my mind there is either some nepotism, or hopefully not racism, as the reason.

          Greg

          Comment


          • #6
            Originally posted by gregsa View Post
            Being permanent does not give job security. You can be termed as easily whether you are permanent or temp (outisde of any contract)

            Thanks HR, I understand about anyone being termed for cause. The security would kind of come from any layoffs would go first through temps, then onto the perms. I know that might not mean much, but it does help when there are SO many temps. As with any employer they are just trying to save money (in bennies) wherever possible, which I understand also.
            What HRinMA said is not limited to cause dismissals. Employers may fire any employee - temp or perm - for any reason at any time, except a reason prohibited by law. Those reasons prohibited by law are mainly about protected characteristics such as race, gender, religion, disability and/or age. "Perm" status is not a protected characteristic, and neither is good performance. In addition, employers may legally fire all their perm employees and keep all their temps.

            Again, being a perm does not in any way bestow extra protection on an employee. In law, there is literally no difference between a temp and a perm.

            Comment


            • #7
              Originally posted by gregsa View Post
              I was actually interested if a situation like this is located somewhere in the New Mexico laws, or would it be considered a federal issue?
              Certainly a federal issue under FLSA. Probably also a NM issue, but that is not my state and I cannot say with certainty.

              Originally posted by gregsa View Post
              So in the back of my mind there is either some nepotism, or hopefully not racism, as the reason.
              Or any one of a hundred thousand other reasons. You are assuming that whoever made the "promise" in the first place has unilateral authority to make such decisions. Or that the situation did not change. Or that some bigger boss did not have a brain fart. Or someone in HR is upset because the correct hoops were not jumped through. Business decisions get made for a whole lot of different reasons, good reasons, bad reasons, but most of the time generally not illegal reasons. Just to be clear, nepotism (assuming that is actually what is happening) is not illegal. Racism could be illegal under Title VII, assuming that is what is really happening and can be proved and falls under the specifics of what Title VII actually addresses. Most bad/dumb business actions are in fact perfectly legal.

              There is a very famous quote that says something like "never ascribe to malice that which can be explained by simple incompetence".

              I have had as many as a dozen direct and indirect reports and I have never once been a position where I could tell an employee that 30 days after we hire you will with certainly get a raise or benefits or anything else. That is (IMO) an extremely dumb statement for any supervisor to make and any/all employers I have worked for would have considered showing me the door for making such statements. In most employers bigger then a hot dog push cart, supervisors do not have uniiateral authority to make such decisons without formal senior management approval. There is a huge amount of employment law saying that some supervisor running off their mouth is not (by itself) binding on the employer. Which is why I said that it was very unlikely that there was a legal cause of action based on what you have said. Unless there is an actual contract spelling out the in 30 days something happens, legally this is nothing.

              One last point. You said that the employer is acting on nepotism or racism. Can you prove this? Do you have any supporting evidence what-so-ever? Ignoring that nepotism is not even illegal for private sector employers, making wild statements with no actual support is arguably a not smart thing to do. No upside what-so-ever. Even if you are right. ESPECIALLY if you are right. If an actual law is being broken such as Title VII then the answer is for the employee to very quietly talk to an attorney. Saying anything to anyone else is a very bad idea.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

              Comment


              • #8
                Originally posted by gregsa View Post
                So in the back of my mind there is either some nepotism, or hopefully not racism, as the reason.
                Nepotism is not illegal.

                To prove racism, your GF needs to have solid evidence (witnesses, written documentation) that the only reason they're not making her perm is because of her race. Just thinking that must be so because you can't come up with another reason won't cut it with the EEOC.

                (Think about it this way: I have applied for many jobs in my lifetime and I haven't been hired for all of them. Many of the jobs I wasn't hired for didn't give me a reason for not hiring me. Does that automatically mean I wasn't hired because I'm female?)

                Comment


                • #9
                  "There is a huge amount of employment law saying that some supervisor running off their mouth is not (by itself) binding on the employer".

                  That kind of sums it all up right there. That low level supervisor can say whatever she needs to meet her numbers, and get the bodies required to fill the positions.

                  I cannot begin to thank you all SO much for your rapid replies. Clearly the best we can do is to sit by quietly and hope she does win that lottery, even if you've given us pause in relation to the temp/perm relationship. I'm sure you can appreciate her frustration with the run around she is getting.

                  I hope you all have a great holiday season…again, many thanks.

                  Greg

                  Comment


                  • #10
                    And a great big load of appreciation from us gregsa for being so mature by accepting our accurate responses even though they're not what you hoped to hear. Too many OPs come here wanting assurances that they'll score big time in a lawsuit, and when we say no, actually based on current law that's probably not going to happen, they get all upset and start calling us names, hurling threats and vitriol, and basically behaving like PITAs.

                    So kudos to you gregsa for behaving like an intelligent adult. We do appreciate it.

                    Comment


                    • #11
                      And a great big load of appreciation from us gregsa for being so mature by accepting our accurate responses even though they're not what you hoped to hear. Too many OPs come here wanting assurances that they'll score big time in a lawsuit, and when we say no, actually based on current law that's probably not going to happen, they get all upset and start calling us names, hurling threats and vitriol, and basically behaving like PITAs.

                      So kudos to you gregsa for behaving like an intelligent adult. We do appreciate it.

                      There is NO WAY I would get upset, you all took time to give me answers, and nobody ripped me. EVERYONE was sensible; after all, you have the smarts to look at things in the proper perspective. As you said it wasn't really the answer I was hoping for, but most importantly it was the right answer.

                      I admit I only did a quick look on this site to see if I might find my answers before posting any questions and wasting your time, so I didn't see any of replies you referred to, but why get nasty just because you don't get the answer you want…you do get the answer you need. I know I did…kind of sound like the Stones!...cant' always get what you want, you get what you need.

                      Thanks again.

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