what can I do? New Hampshire New Jersey New Mexico

[nlap5000]

I work as a flat rate technician for a car dealership in NH. As I was leaving work today one of our service advisors asked me to look at a car I had worked on earlier in the day. Aparently when the customer came to pick up his car he complained about a noise he heard when he sarted his car.
I refused to look at the vehicle. It was after buisness hours, there was no repair order for me to diagnose the concern, and from how the noise was described to me, there is no way that his startup noise could be even remotely related to the work I had already done to the vehicle. There is no way I was going to look at it for free. Well, shortly after I heard from my service manager. I was told that if I ever give the service advisor "****" about looking at a car again, I would be terminated.

heres where im comming from. I dont run a charity. as a flat rate tech, I get paid for the work I perform, not by how many hours im at work. Without a repair order I cant get paid, and I was on my way home. So basically I was asked to stick around late, and work for free. I was also told if I refused I would be terminated. I like my job alot. the people I work with are great, (everybody except the service manager, and service advisor) I like the work, the money isnt bad, and as odd as it sounds, most days I actually get excited about going to work, and show up early. I dont want to have to quit, or get fired, but I refuse to work for free, or get taken advantage of. What can I do.

[robb71]

You've already listed your options: quit or let yourself be fired.

The requirement under law is that you must make at least minimum wage for all hours worked. If your regular rate of pay exceeds minimum wage, then the employer's responsibility has been met under FLSA. I understand that you are paid by the job; however your employer is still responsible for tracking your hours to assure that your pay does not fall below minimum wage. As such an employer may require mandatory overtime and no law requires that you receive advance notice. It's your boss that makes the work schedule. If you disagree or refuse, you may be disciplined (including termination) for not complying.

I am not picking on you. I am only pointing out that you haven't described anything unlawful.

[nlap5000]

maby you misunderstood what I said. or how flat rate pays.

as a flat rate tech, I get paid hourly by the job. if a job pays 4 hours, and I get it done in 2, I still get paid 4 hours. If a job pays 4 hours, and it takes me 12 I still only get paid 4 hours. I could be in the shop 50 hours a week. If I only do 5 hours worth of work, thats all I get paid, and screw minimum wage because that doesnt apply. I dont clock in at the begining of the day, or clock out at the end of the day. I clock in at the begining of a job, and out at the end of a job, I cant clock in or out without a repair order to flag.

basically what it comes down to, is I was told in a round about way, that if I refused to work off the clock, or for free again (need I mention that $0 is below minimum wage) I would be fired.

please dont bother to respond if your going to post the same canned response I see in every body elses thread.

[robb71]

At the end of the year, are you receiving a W-2 or 1099?

If you receive a W-2, the company considers you an employee and the employer MUST follow applicable labor laws.

If you receive a 1099, the company considers you an independent contractor and labor laws are not applicable.

With respect to being required to stay late:
You may not like the response I provided. I am not in a position to pass special legislation so that you can you tell you boss "NO". I agree that you should not be working for "free". I am on your side. I am only pointing out some basic facts and the facts support the employer with respect to requiring you to stay past your shift end time. By saying "NO" you may be putting your job in jeopardy.

With respect to the pay issue:
An an employer, your boss has recordkeeping requirements that are required by law (i.e. keeping tab on your hours worked). If you divide your gross pay by number of hours worked, is the amount greater than minimum wage? If not, then that's a problem. Your situation is similar to "piece rate" jobs. In a piece rate job, the employer is paid based on the number of units produced. Most piece rate pay scales are combined with a minimum pay guarantee. This is done to cover cases where not enough pieces are produced to cover minimum wage.

[ScottB]

Originally Posted by nlap5000

please dont bother to respond if your going to post the same canned response I see in every body elses thread.

Sorry if the responses look "canned," but sometimes it is difficult to give answers if all the details are not provided.

I would have difficulty figuring out just how the way you are paid is legal.

But, let me try. You MUST be paid at least minimum wage for all hours worked in a work week (unless you fall under some exemption, which is not likely). So, the employer pays you by the job, which usually is not a problem, since the total pay for the jobs done in a week exceeds minimum wage (and probably then some).

However, this one job, according to the employer, is not complete, as the customer is not happy. So, to finish the job, you need to work more, but you get no more pay for doing so (let's ignore any overtime implications here or in the other jobs). You disagree that this is an old job and refuse the work.

The company fires you.

Legal. Sorry.

You might be working for nothing for the time involved finishing that one job, but what the employer needs to ensure is that your pay for the work week is at least minimum wage for up to 40 hours plus overtime above that.

[nlap5000]

ok, maby I didnt explain my complaint well enough.

my issue is not the fact that I was required to stay late. ocassionally there are times when there is more work than can be completed in a regular work day, and I am required to stay a few hours past my shift to get everything done. I dont have a problem with that, its part of my job.

There are also times when I mess up, or the customer is not satasfied with the work ive done. in that case, a repair order is made, I clock on to that job, and I end up working on that car for free. I dont have a problem with that, I got paid a certian ammount of money to do a job, it is my responsibility to make sure its done right.

What I do have a problem with is being told that if I dont diagnose a concern for free, I would be fired. there is no way that can be legal. How can an employer ask their employee to work off the clock, and tell them that if they dont they will be fired.

Im not sure about this one, but it has been my understanding for a while now that there are a seperate set of laws for "flat rate" laborers. I was looking to research that when I came across this forum. If any of you can direct me to a site where I can look some of this stuff up I really would apreciate it

anyway, it doesnt really matter anymore, Ive decided what im going to do. monday when I go to work, im going straight to the owner of the company I work for, and if he doesn't back me up against the service manager, then ill just walk. there are plenty of jobs out there I can find another.

[cbg]

I think you're the one who doesn't understand.

As long at the end of the week as you have received minimum wage times hours actually worked (this would include the hours that you stayed late), you have been paid correctly and the law would not consider that you worked "for free".

I realize that you are generally paid by the job. However, the law does not require that. The law ONLY requires that you receive the higher of state or federal minimum wage times the number of hours you actually worked, plus overtime at the rate of time and a half minimum wage (the higher of state or Federal) for any hours over 40 in a work week.

Since the law would not consider that you were working for free, yes, it would be entirely legal to fire you for refusing to stay and do the diagnosis.

[robb71]

No fighting allowed!

nlap5000: The best recommendation that we can make is for you to also track your hours. If there should ever be a circumstance where you'd fall below minimum wage, you have a right to make an unpaid wage claim with your state's department of labor. Until that happens, you are not being paid incorrectly. I agree that it is the employer's responsibility to maintain "accurate" records. If you feel this isn't happening, you may discuss the matter with your state's department of labor.

NHDOL allows for you to submit your questions online via this link: http://www.labor.state.nh.us/contact_NHDOL.asp.

[cbg]

Rule of thumb; don't insult the moderator.

[Pattymd]

That doesn't give you the right to refuse. If you work and you do not get paid at least what the state or federal law requires, then you have options. It's called filing a claim with the state Dept. of Labor.

What YOU don't seem to get is that you've gotten several consistent opinions from professionals with MANY years in the business, and you refuse to accept any of them and, instead, resort to name-calling. Very rude.

[ScottB]

Originally Posted by nlap5000

Ive decided what im going to do. monday when I go to work, im going straight to the owner of the company I work for, and if he doesn't back me up against the service manager, then ill just walk. there are plenty of jobs out there I can find another.

You seem to have affirmed my assessment of the situation -- you are paid more than the minimum wage for your time worked. What you object to is being told that a job is not done and you need to put in more time on it when you know, in your professional opinion, that the problem is a new one and not the one you fixed earlier. Any and all time you put in will not bring you extra compensation unless you can convince the service manager (or his boss) that this is a new job for which you should be paid more. I cannot fault that and your plan to go to the owner is the right one, if the service manager cannot be convinced.

Unfortunately, your options are limited to just that -- appealing to the boss -- as there are no goverment agencies that would be willing or able to tell the company when your job is complete and when it is not.

Good luck!

[nlap5000]

There was never any question about if the job I performed on the car was complete. Everybody, including the customer understood that it was a new complaint, and completely unrelated to any previous work I had done on the car.

What I was looking for was some sort of law preventing my employer to force me to work off the clock. That way I could tell him that legally he couldnt fire me for refusing. Aparently there isnt, and I cant.

Thanks for the help, even if it wasnt what I wanted to hear. I think the owner will back me up on this one anyway, because he loses money in this situation, and it is against company policy to work on a vehicle with a repair order