Exempt and required to be on call 24/7--VT and OH

[xild]

I worked for a university in student housing, as the director. My contract required me to live on campus, with housing and meals provided, 24/7. I was considered part-time but on call all the time, and my hours were often over 40 hours. Typically I would receive calls one after another at all hours of the day and night in addition to other more time-structured tasks.

The college was sold. The new owner hired me per the same arrangement.

I would like to find out if it was illegal to have me working this way. I saw notice of my job specifically in a campus wide report which stated the university intended to change me to an hourly employee, though they never did. I suppose they knew I would be leaving eventually, due to a disability that was progressing. I worked in Vermont, then company who bought the college is in Ohio.

[Sue]

Just so I understand, are you saying you don't receive any monetary compensation -- just the room and board?

[xild]

Apologies. The pay was/is room and board plus a stipend. It was paid monthly and always the same.

[Sue]

Hi.

It looks like it it legal for two reasons:

1. Your room and board can be considered for wages.
2. You mention disability and here is what the FSLA says on that:

Subminimum Wage Provisions

The FLSA provides for the employment of certain individuals at wage rates below the statutory minimum. Such individuals include student-learners (vocational education students), as well as full-time students in retail or service establishments, agriculture, or institutions of higher education. Also included are individuals whose earning or productive capacity is impaired by a physical or mental disability, including those related to age or injury, for the work to be performed. Employment at less than the minimum wage is authorized to prevent curtailment of opportunities for employment. Such employment is permitted only under certificates issued by Wage-Hour.

Since you have a disability, you can be paid less than minimum wage, figuring all compensation, i.e. room board, stipend.

Best Wishes.

[xild]

Okay. The job description has been the same for many years prior to my taking it. It only became an issue when people realized I had been assigned to take on additional, management-type responsibilities. So, I actually took on more responsibility in the position than people without disabilities who had that same job before. One changr in my position description reflected the inclusion of oversight and decsionmaking responsibilities, and to exclude manual labor which the housekeeping staff took on.

Now, when the new company hired me I do remember signing a paper which asks everyone if they have a disability. Apparently, in Ohio, an employer is either compensated or given some sort of status for hiring people with disabilities. I should have kept the disability out of the issue, I think.

My question really goes to understanding if it is/was legal to have someone working part time, but on call all the time. And more specifically to what happened to me, to have me working more than full time, over half the year when it was busy. Take into consideration that the other almost half the year I didn't work more than half time. But that was less than half the year.

I knew I would make this more complex than necessary but I have never been able to articulate this properly and yet after seeing that report include how my job was structured specifically as something a lawyer (referred to as an "ambulance chaser" in the report) may take on and bring charges against the university.

[Sue]

My question really goes to understanding if it is/was legal to have someone working part time, but on call all the time.


Addressing just this issue and this alone, yes you can be on call all the time without further compensation as long as you can go about your life and not be required to "stand by" on the premises with no personal life of your own.

Since you live on the premises, it's a gray area, but if you are free to come and go and just be "on call" that's fine.

[LConnell]

Disabilities

The ability to pay below minimum wage to persons with disabilities is under Section 15. The process to gain approval for this is long and hard, as well as the work to maintain the sub-minimum wage. (I've had a lot of experience in this area.) The purpose of the sub-minimum wage is not to deny persons with a disability the same wage as a person who is fully able. Instead, it is to help persons who would not otherwise be qualified to work. Under the scenario that I am familiar with, we had persons with disabilities working as janitors. Several would not have been hired had their capability to perform the work be compared to persons who are fully capable. So, a study was performed to compare the work standards between the fully abled group to persons with less capability. As an example, a person with a disability could only work at a 50% capability. They were then paid 50% of the wages of the fully able. These types of programs are a way to extend work opportunities to persons with disabilities.

As far as your situation, I agree that this sub-minimum wage is not pertinent to you. You are able to perform the same level of standard as persons without a disability.

It sounds that you are considered as an exempt employee. If so, exempt employees are not entitled to extra pay for working additional hours, etc. If you are non-exempt (often called hourly, though there are salaried non-exempt), you would only be compensated for the time on-call when your ability to pursue your own personal interests is very restricted AND when you are actually working. For example, if you are not permitted to sleep, watch TV, etc., while on-call, it would be considered as compensable time for a non-exempt person.

[xild]

Thanks for letting me run this by you and thanks for the incredible service you provide here in this forum.

[xild]

Oh, I see an additional response. Thank you. Yes I was able to continue my life while on call. I really didn't understand why there was a reason to change that position. It was a wonderful job which I took when I realized I was not able to keep up with another very demanding position I held at the university. I could see where my disability was slowly going, and I jumped at the opportunity. Eventually I could not work at all for months at a time, so I had to resign.

I did not know about these new rules to hire disabled people at a lower wage but I think it's a good thing. Currently, I cannot hold a position because I cannot always be dependable. But when I am okay I can do just about anything that isn't physically even semi demanding. My biggest restriction is I need many rest periods, and I need them at unpredictable times. If I could get a job and work at a comfortable pace, perhaps something at my own hours that would be great and I would gladly take a lesser wage. Many people with my disability work from home and not on a clock and I can understand why that works well for them.

Thanks again. Labor issues are vast in scope and you share a lot of information through this forum.

[xild]

Actually, I just found this link in another thread. for an administrative exemption, I met all the requirements.

http://www.dol.gov/esa/regs/complian...a_overview.htm

So the university had nothing to fear. Unless pay of no less than $455 per week (which would be halved for a half-time exempt employee) means actual pay, not the housing and meals included. Of course my meals and housing were not taxable income.