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Breaking it down... Massachusetts

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  • Breaking it down... Massachusetts

    In the hope that I will at least get some of the answers I need, I thought I would break my questions down into individual posts:

    I am wondering if there is a requirement to include *accurate* pay information on a paycheck in the state of Ma. My husband's employer has been listing an inaccurate hourly wage on his check, when he does not get paid hourly, generally speaking, and when he does, it is NOT at the hourly wage listed on the check. If my husband (or his co-workers, as this occurs with ALL of them) were to file a worker's comp claim, I am concerned the company would claim the hourly wage listed on the paychecks as their rate of pay, and it is substantially below what they are actually earning. Since none of these employees has anything in writing stating anything different, I am concerned it would be difficult to establish how and what they are actually getting paid, and that they would end up taking a bath if they need to file a claim. If this "error" is intentional by the company for the reason of reducing the amount of a WC claim and by default, their insurance rates, would this constitute insurance fraud?

    These are exempt interstate truckers who get paid mileage, stop pay and detention pay (which is the only thing paid hourly). The company's pay rates are very complicated and thus far, they have refused to hand over anything definitive in writing in regard to what the drivers get paid, other than a seperate weekly paper listing the specifics, but this is just a computer printout which is not on company header.

    Many thanks

  • #2
    Originally posted by NonCometL View Post
    If my husband (or his co-workers, as this occurs with ALL of them) were to file a worker's comp claim, I am concerned the company would claim the hourly wage listed on the paychecks as their rate of pay, and it is substantially below what they are actually earning.
    I won't touch issues of pay and interstate truck drivers -- that is an area I simply do not understand.

    However, should a WC claim take place, the employer should be asked by the carrier to provide a listing of wages paid going back 52 weeks. That will establish the average weekly pay, so I would not worry about whatever inaccurate rate of pay appears on the pay stub.
    Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

    Comment


    • #3
      Originally posted by ScottB View Post
      I won't touch issues of pay and interstate truck drivers -- that is an area I simply do not understand.

      However, should a WC claim take place, the employer should be asked by the carrier to provide a listing of wages paid going back 52 weeks. That will establish the average weekly pay, so I would not worry about whatever inaccurate rate of pay appears on the pay stub.
      I know in theory, this is correct, however, in a previous WC claim my husband had, the insurance company completely discounted any overtime, as they simply calculated his average weekly pay based on his (then) hourly wage (this was at a different place of employment). They did not calculate average weekly pay, but pay based on a 40 hour work week at his hourly wage. So, I guess what I am concerned about is that the employer would claim he works at X dollars/hour, for a 40 hour week and that the rest is overtime, since there is absolutely nothing listed on the check aside from an hourly wage (they do not list even the number of hours worked - simply gross/net pay and deductions.)

      Comment


      • #4
        Pay stubs (or other method of providing the information) in MA must include the employer's name, the employee's name, hours worked, rate of pay, and itemized deductions.

        Having said that, though, I can imagine that, with the pay structure you've described (which I understand no better than ScottB), it would be difficult to do with an automated payroll system.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          How the AWW is calculated for WC is set by statute. If the carrier uses any other method then you can challenge this. I certainly wouldn't worry that his pay stubs were inaccurate only for this reason.

          Depending upon how they pay, the payroll software they use and the frequency, what appears isn't necessarily what actually is. If he is paid as salary, non-exempt, semi-monthly, this is especially true.
          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


          • #6
            Originally posted by ElleMD View Post
            How the AWW is calculated for WC is set by statute. If the carrier uses any other method then you can challenge this. I certainly wouldn't worry that his pay stubs were inaccurate only for this reason.

            What other reasons would you worry for :-)


            Depending upon how they pay, the payroll software they use and the frequency, what appears isn't necessarily what actually is. If he is paid as salary, non-exempt, semi-monthly, this is especially true.

            He is exempt, as this is interstate trucking, and he is not salaried and is paid weekly. In addition to the WC concerns, I just feel like this company, despite it's Fortune 500 reputation, is not entirely on the up and up - they refuse to provide a written description of the payrates, while every other policy they have is in triplicate, signed and seconded by everyone.
            I can see no reason whatsoever for this hourly wage to appear on the paycheck except in some way to protect the company - they don't get paid hourly except for detention time, and when that occurs, the rate that appears on the check is actually higher than the rate that they are paid. This rate is not even used to calculate their paid time off. And it's a different wage for different drivers - it makes no sense at all.


            Thanks for everyone's answers....

            Comment


            • #7
              Well since filing a WC claim should be a very unusual event, it generally isn't something anyone thinks of when considering pay issues. Added to that, your state has a set formula for figuring out what the AWW should be and what appears on the pay stub has no part in it.

              If he is exempt, he is paid on a salary basis. His employer may opt to pay a bonus for certain duties using an hourly rate but he would still need to be paid on a salary basis. If he is a truck driver, he isn't exempt. The employer can have different rates of pay for different duties. For example, they may pay time spent driving at a different rate than time spent waiting for a job, and time spent loading the truck. The payroll department probably uses the person who came up with such a plan's picture as a dart board, but it is legal.

              How PTO is calculated is completely up to company policy.
              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


              • #8
                Originally posted by ElleMD View Post
                Well since filing a WC claim should be a very unusual event, it generally isn't something anyone thinks of when considering pay issues.

                You might think so, unless you happen to be someone who had to file bankruptcy due to getting screwed on WC and being out of work for 18 months, required surgery and was left with a lasting disability. It is only 60% of your average weekly pay, and it doesn't leave a lot once child support and health insurance are taken out, and any settlement that might become necessary is based (in large part) on your earnings. Following a previous back injury OTJ, my husband was left to live on $160/week from his WC check. Not much, is it? So, yeah, here this is a valid concern, because we've been there, so we do think about it.

                <<Added to that, your state has a set formula for figuring out what the AWW should be and what appears on the pay stub has no part in it. >>

                If he is exempt, he is paid on a salary basis. His employer may opt to pay a bonus for certain duties using an hourly rate but he would still need to be paid on a salary basis. If he is a truck driver, he isn't exempt.

                Then I'm confused or perhaps we're talking about two different things, because everything I have read has stated that interstate truck drivers are exempt. He doesn't get paid salary - he gets paid by the mile, and the miles differ every day, and the route differs daily, and the pay per mile is different depending on the route, therefore, his paycheck differs every week. I might be mistaken, but I don't think you can consider this a salaried position, and as far as I am aware (and I sure would like to know differently :-) interstate truck drivers are exempt under the FLSA, which is why they tend to get screwed so regularly by their employers. No one mandates any standard of pay for them at all, and if they do, I'd love to see it, because I've been looking.


                The employer can have different rates of pay for different duties. For example, they may pay time spent driving at a different rate than time spent waiting for a job, and time spent loading the truck. The payroll department probably uses the person who came up with such a plan's picture as a dart board, but it is legal.


                I'm not disputing the legality of how they get paid in regard to their pay rate, though I fail to see why it should be legal to pay someone a rate per mile to drive, and then require them to do additional duties for free, or to sit for an hour for free because the customer keeps them waiting. Because in essence, that is what happens. All record keeping, loading/unloading, etc. is done for free - they only time they earn money is when the wheels are turning. All other non-salaried workers are paid for ALL of the hours they work, but not if you happen to drive a truck, for some inexplicable reason - then you get paid what your employer feels like paying you, period.
                A recent fiasco involved a driver being kept waiting for over 6 HOURS at a customer, which meant the driver couldn't deliver any other loads that day, or drive any other miles, so he got nothing except the few miles to the first stop, and because the customer kept the truck moving around the yard all day long, the driver didn't even get the detention pay he should have been entitled to because the company then claimed each time the truck was moved it reset the 45 minute "clock" (they do not get paid for detention time until 45 min. has lapsed and then they get paid only for anything OVER the 45 minutes). Essentially, the driver worked the entire day for about $20.00


                How PTO is calculated is completely up to company policy.

                Sure. But there is no company policy in regard to this, or any other method/rate of payment. I am a reasonable person, and I personally only get paid for 6 hours on holidays, rather than the number I typically work by my employer. I don't complain, because I am aware they don't need to pay me for it at all. And in trucking, a good many places don't give paid time off or paid holidays, so its hard to complain about whatever they choose to pay. I brought the subject of PTO up only in reference to the hourly wage listed on the paycheck.

                OTOH, it seems to me that it couldn't (or shouldn't) be legal for an employer to randomly change your rate of pay after the work has already been done.
                b n'

                Comment


                • #9
                  Originally posted by Pattymd View Post
                  Pay stubs (or other method of providing the information) in MA must include the employer's name, the employee's name, hours worked, rate of pay, and itemized deductions.

                  Is there a penalty for failing to comply with this?

                  Having said that, though, I can imagine that, with the pay structure you've described (which I understand no better than ScottB), it would be difficult to do with an automated payroll system.
                  I imagine it would be virtually impossible to fit it all on a paycheck, to be honest, no matter what software the company used (incidentally, they generate their own payroll) The law in Ma seems to be somewhat vague on this - the AGs website states it must appear on the pay*check*, but MGL says the employee must be issued a pay *slip* OR pay check with this information. So, I suppose it leaves open the argument that a computer-generated print out that is issued seperately with the check is considered a "payslip". ::shrug:: I don't honestly care whether it lists all that info on the check or not, I am simply bothered by the hourly wage thing.

                  Comment


                  • #10
                    Drivers may be exempt from OT but not from Minimum Wage. You can find more about this here www.dol.gov/esa/regs/compliance/whd/whdfs19.htm .

                    Whether you can meet your financial obligations in the unlikely event of a WC accident, still has no bearing on what is on the pay stub. That has nothing to do with what his TTD rate would be. The WC carrier doesn't go by pay stubs when setting the rate. If you can not meet your financial obligations on TTD, changing what appears on the pay stub isn't going to change that, even assuming the stub is wrong.
                    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


                    • #11
                      Originally posted by ElleMD View Post
                      Drivers may be exempt from OT but not from Minimum Wage. You can find more about this here www.dol.gov/esa/regs/compliance/whd/whdfs19.htm .

                      Whether you can meet your financial obligations in the unlikely event of a WC accident, still has no bearing on what is on the pay stub. That has nothing to do with what his TTD rate would be. The WC carrier doesn't go by pay stubs when setting the rate. If you can not meet your financial obligations on TTD, changing what appears on the pay stub isn't going to change that, even assuming the stub is wrong.
                      Ok, forgive my ignorance, but I don't know what TTD is... That being said, thank you for the info - it was my (apparently erroneous) impression that only "straight time" was counted in determining AWW, but if I am understanding you correctly, its the average weekly wage, including overtime (if there was overtime...). So, its the average of the checks' gross amount, no matter how it was earned, which at least makes me feel better about that aspect of it.

                      Oh, and just FYI, WC claims in the trucking industry are not uncommon or unlikely. Back injuries are pretty commonplace, depending on what kind of driving you're doing, to say nothing about the risk of traffic accidents. Its the nature of the work. In the 4 years we've been together (and we met while he was recovering from back surgery surgery from a WC injury, which was the second work-related injury he sustained that required surgery) he's been treated at least once a year at the emergency room for work-related injuries, including just last month when a strap snapped on a load and knocked him unconscious. He was pretty lucky to not be killed or injured more seriously than the concussion he received. At least two of the half dozen drivers he works with directly at this time have had severe injuries requiring extensive time off and rehabilitation.
                      Considering the low pay at most of these jobs, and the lower pay of those who maintain the trucks and load/unload them, as well as the employers who will skirt safety responsibilities whenever possible, its a wonder more drivers aren't seriously injured. I don't know many drivers who have never had a WC claim. A WC claim may be unlikely in some or even most professions, but not this one, IMHO.

                      Thank you again for all your advise.

                      Comment


                      • #12
                        Ok, forgive my ignorance, but I don't know what TTD is... That being said, thank you for the info - it was my (apparently erroneous) impression that only "straight time" was counted in determining AWW, but if I am understanding you correctly, its the average weekly wage, including overtime (if there was overtime...). So, its the average of the checks' gross amount, no matter how it was earned, which at least makes me feel better about that aspect of it.

                        TTD is temporary total disability- the 2/3 pay you receive from WC.

                        And yes, it is the total compensation including any OT that is used to figure the AWW.
                        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


                        • #13
                          Breaking it down Part II - the crazy payroll lady....

                          Originally posted by NonCometL View Post

                          These are exempt interstate truckers who get paid mileage, stop pay and detention pay (which is the only thing paid hourly). The company's pay rates are very complicated and thus far, they have refused to hand over anything definitive in writing in regard to what the drivers get paid, other than a seperate weekly paper listing the specifics, but this is just a computer printout which is not on company header.

                          Many thanks
                          As the saga continues - the supervisor has diligently been attempting to get payrates in writing from the payroll department. The woman he is forced to deal with in payroll keep stonewalling him (in fact, she keeps hanging up on him when he asks for direct information, refuses to respond in writing to his requests, and keeps lying to him...)
                          Thus far, the payroll lady has refused to produce something in writing that directly relates to what the employees are getting paid for, exactly. She has produced a sheet detailing mileage pay based on destination (which, incidentally, included a raise in rates), the rate of what they call "stop", "trip" and "detention" pay, but refuses to provide a written explanation of when, exactly, the employee is entitled to these rates, which is the current object of contention, as she now claims that the employees are not entitled to pay for things they have always been paid for.
                          In addition, when called on the fact that each employee has listed on their paychecks an "hourly" rate of pay, and that it is different for each employee, she flat-out denied it. She also denied that on all previous occasions, the drivers have been paid for specific things that she now claims they do not (and claims never have been) paid for. The supervisor, quite aggravated by this point, faxed her copies of paychecks and payslips demonstrating his point. She refused to respond.
                          My husband is owed back pay by the company because of repeated incorrect calculations on his payslips (which, btw, were correctly calculated and approved by the supervisor, and changed at the payroll depart). IE: they have repeatedly shorted his check. This has been going on since July. His previous and current supervisors, and THEIR supervisors, and in fact the head of the human resources department all acknowledge that he is owed this money.
                          The supervisor has had repeated conversations with the crazy woman in payroll regarding this. She refused, initially, to pay it, claiming he wasn't owed the money. Then, after having it demonstrated that he WAS owed the money, stated it would be paid, and the supervisor should re-submit the paperwork, which he did immediately. When the supervisor requested (via e-mail) that she confirm the money would be on his next check, she failed to respond. When the next check came, she has paid only 2 of the hours owed him, instead of the six that was owed, and again didn't pay the adjustment for errors made calculated mileage, etc., so the adjustment was short.
                          The supervisor called her, with my husband present, to get an explanation as to why, again, the money wasn't there. She claimed it was. The sup. explained that she'd only paid him 2 of the 6 hours, etc. She said he was only owed two hours. He said he'd put in for the 6 hours, that it had been discussed and was settled, and demanded to know why she'd taken it upon herself to change it. She again said he wasn't owed the money. The supervisor requested she put her explanation in writing and immediately e-mail it to him. He's still waiting....

                          It would seem, at this point, that the woman in payroll is randomly making up the rules as she goes along, seems to harbor some grudge against the department, and in general is being a real pain in the posterior.
                          So, I am wondering if, at this point, it seems reasonable for my husband to file a written complaint against her with corporate. It seems that the head of human resources knows this is going on, and has done nothing (and the HR person is a pretty bigwig in the corp.) The supervisor would prefer it if my husband allowed him to handle it. My submission is that it's been being handled for 4 months now, and everyone has been given a fair chance to "handle" it, and no one has, and that it's time to stop being nice.

                          We aren't talking about a lot of money here - its less than $200. At this point, for me anyhow, it's an issue of principle, and the endless circle-jerk needs to stop whether they like it or not.

                          So, questions:
                          1. does it seem reasonable to file a written complaint against this specific employee, or would it be better to simply submit a demand for pay, or should he just let the supervisor continue to "handle" it?
                          2. Is the company legally obligated to inform the employees in writing, prior to performing the work, of what, exactly, they are getting paid for and how, considering the complex nature of their pay?
                          3. Back to the hourly wage thing on the checks - legal or not legal to supply an incorrect figure for "hourly wage" when they are not even paid by the hour.
                          4. Can these non-union employees go on strike? Because they are considering it, since they are all pretty fed up with what's going on...


                          Thanks...

                          Comment


                          • #14
                            1. At this point, I'd just recommend filing a claim with the Attorney Generals' office (which serves as the Dept. of Labor in Massachusetts) and let them sort it out with the company.

                            2. Prior to payment, no. Your state DOES require the hourly rate of pay on the pay stub, assuming the employee is PAID based on an hourly rate. If at least a portion of his pay is based on hours X hourly rate, add that to the claim.

                            3. See #2. If the employee isn't paid an hourly rate for hours worked, what do you expect them to put on the stub? Honestly, I'm not sure that the AG's office would consider this a violation.

                            4. Non-union employees don't go "on strike". That is a union phrase. Nonunion employees just stop working and risk being fired for, if nothing else, job abandonment.

                            I do apologize for crazy payroll lady though. We're not ALL that way.
                            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                            Comment


                            • #15
                              Originally posted by Pattymd View Post
                              1. At this point, I'd just recommend filing a claim with the Attorney Generals' office (which serves as the Dept. of Labor in Massachusetts) and let them sort it out with the company.

                              We've had that recommended before, however, we are still waiting for the DOL to process and investigate a complaint filed with them nine months ago from a previous job my husband held (it would seem all trucking companies are alike in the avenue of screwing their employees). They claim case backlog is the problem. It doesn't seem like a feasible solution, if it takes upwards of a year to get them to act on anything. In addition, we contact the state DOL who refers us to the US DOL, who refers us back to the state. It seems no one can or will deal with the issue of interstate trucking.

                              2. Prior to payment, no. Your state DOES require the hourly rate of pay on the pay stub, assuming the employee is PAID based on an hourly rate. If at least a portion of his pay is based on hours X hourly rate, add that to the claim.

                              They are paid hourly in portion, for detention time. However, what they are paid for that is less than what is listed as the hourly rate on the check, and the hourly rate they list is significantly less than their average hourly gross.

                              3. See #2. If the employee isn't paid an hourly rate for hours worked, what do you expect them to put on the stub? Honestly, I'm not sure that the AG's office would consider this a violation.

                              In MA, my understanding is that they are supposed to list the pay breakdown directly on the check. It seems like it would be impossible for them to do so, and that isn't the issue. The issue is that they list an inaccurate rate of hourly pay on the check. This concerns me in a number of ways, but mainly it just irritates me that they do it and won't explain it, and worse, deny it occurs, which makes me suspicious as to WHY it occurs, and who they are trying to scam (and I do think of it in that light given the behavior of the company thus far).

                              4. Non-union employees don't go "on strike". That is a union phrase. Nonunion employees just stop working and risk being fired for, if nothing else, job abandonment.

                              Yeah, this was my thinking as well. They are in the process of considering forming and/or joining a union currently, as they have all just about had it with the endless payroll saga. A few months prior to my husband's employment with the company, the employees had considered joining the local union, but upon being promised the world by the company, ended up declining and voting unionization down. They have since been informed they may not attempt it again for some period of time (I don't recall if it was 6 or 12 months). The end of that is the company never delivered on what they had promised, and the company, at the time, failed to deliver an agreement in writing, so now they are all SOL because the company did not live up to their promises.

                              I do apologize for crazy payroll lady though. We're not ALL that way.

                              <g> While I am certain that's true, this one is either way over or under medicated. Not sure which. Thanks for the reply :-)

                              Comment

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