I need to know some law! (long post) Massachusetts

[Woodworker]

First off, let me just say that I know nothing about the law. I have never needed to know anything about the law, and for that I am thankful. But now that I do need to know something about Massachusetts and Federal Labor Laws, I am glad there are people out there who do.

Ok, let me just warn you that this is going to be a long and ridiculous post, because I worked at a ridiculous place. A small privately owned Furniture Company that sells very high end furniture. We are talking 16,000 dollar beds, 5,000 dollar nightstands, 10,000 dollar chests of drawers. High end stuff. And this business is run unlike any other business I have ever heard of. The way wages are made and distributed is bizarre, how people are treated is insane, and overall the entire operation could be illegal… I don’t know. So I am going to relate most or all of it, and see if any of you can help me.

So It begins….

Now the guy that runs this place, let’s call him Mr. X, hires everyone as an “Apprentice Furniture Maker” Now… he claims that after 5 years of working for him you will be a Journeyman. He claims this, but it has never happened because he has never been able to retain an employee for the 5 years it would take to become a Journeyman. But that is neither here nor there; here is the rub… I don’t think the State of Massachusetts recognizes Furniture Maker as an “Apprenticable Activity”.
Basically I know Electricians and Plumbers and other trades have some sort of recognition by the state as Apprentices and Journeymen, and need to get through the Apprenticeship to become an electrician or a plumber… I don’t think that mechanism exists for Furniture Makers. I know Mr. X applied to the state to let him establish a Furniture Makers Apprenticeship, but I believe he was turned down, or the application hasn’t been processed by the State. There was a guy that used to work there that actually looked into it and he said there was no evidence that our Furniture Company was in anyway certified by the State.

Now, looking around the shop one day I did find a packet with this printed on the shop…

“Division of Apprentice Training.
Department of Labor and Workforce Development
Commonwealth of Massachusetts

Standards of Apprenticeship
Employer – Program Sponsor

Formulated By:
Mr X


I believe this was his program that he put together that he sent to the State for Approval. But, at the end of the packet where there is a space for the Director of Apprentice Training to sign approval, the signature is missing. I still think he is waiting for the signature.

So that would be Mr. X’s first offense. He tells people he will hire you as an Apprentice, and in 5 years you become a Journeyman, but in actuality, that is probably a lie. But no one has ever stayed employed 5 years to find out.



Once you are hired at this Furniture Shop, this is where the REAL fun begins. You are given two items, a punch card to punch into the time clock, and a timecard where you write how long you worked on certain jobs. You are paid according to your timecard, not punchcard. And he will tell you how many hours to put on your timecard. He will cap you. So, when I first started I worked 8 hours a day, but was only allowed to put 5 hours a day on my timecard. I would only get paid for those 5 hours. The other 3 missing hours were considered “training”.

So on any given week, I would work 40 – 44 hours and get paid for 35 hours. And my hourly rate was minimum wage. I worked 5 – 9 hours for free every week. He claimed this was because of “training” And I never got compensated for training. I complained about this and eventually I was able to record all the hours I actually worked. But this was only at the end. For that majority of my employment he “capped” my pay at 35 hours per week, even though I was working 44. And, BTW, I seldom received any training during those “supposed” training hours.

Now you are probably wondering why we even had punchcards to punch, seeing as we were paid by our doctored timecards. The punchcards were just there to make sure people were coming in on time and leaving on time, seeing as our timecards were so fabricated.




Now, about three months into my employment by Mr X, I had some words for him about the missing hours and some other of the shady economics of the company. So he called me into the showroom to chew me out. He laid out all the papers I had signed when I had started including my “Apprentice Agreement”.

And he starts to chew me out. While he is talking, I take hold of my Apprentice Agreement and read it. According to this agreement, I was only supposed to work uncompensated hours during my “trail period” that was supposed to last 2 months. And here I had been working partially uncompensated for 3 months. So even if it is legal that he has his employees report less time working then they actually work, I have a contract with him stating I wouldn’t work uncompensated hours for him after the two month mark.



So, at this furniture company I was hired as a furniture maker but was soon put into the Varnish room to work as a Varnisher. Now, he had always told everyone Varnishers made more money initially because their training was so little, but their salary capped out quickly.
I was put into the Varnish room because our entire Varnishing Staff quit the same day. I was put in there, but instead of getting paid a Varnisher’s salary I got paid an apprentice furniture makers salary which was working 44 hours a week and only getting paid for 35 hours at minimum wage. He tells me he will hire another Varnisher soon, and it is a temporary situation. Well he hires another guy, and that Varnisher gets fed up with him and quits within two weeks. So for those two weeks I was still in the Varnish Room training him up, I never left the Varnish Room.

And that happened again and again. So here I am stuck in the Varnish Room for like 3 months, getting paid my less then minimum wage for my pretend Apprentice Training that isn’t officially recognized by the State, and Mr. X is kind of a jerk on top of that.
I confront him and tell him how the company is a sham and explain to him why he can never retain employees. That is just a big shady treadmill that hires on false pretexts and may even be in violation of the law. (I don’t know if these things are illegal or not). He and I argue/discuss for a while and he tells me he likes me as a person and that these “discussions” are healthy for the company. The next day we have another “healthy” discussion and he suspends me.

I have no idea what a suspension is. He claims he has never fired an employee. I think he just suspends them until they quit. When I asked him for a reason he said he didn’t feel like talking about it. Literally. He said he “I don’t feel like talking about it” when he suspended me. No reason. He said he would call me on Mon. to talk about it. He didn’t call. I am being stonewalled. If I file for un-employment and I claim I got laid off or fired, he won’t sign the paperwork or something because I quit. He is stonewalling me until I quit. I don’t know what kind of advantage that gives him. Or he may try to hire me back at reduced wages or something. Don’t know…

Can I file for unemployment? What is a suspension? How about how I was being paid, is that legal? And his pretending to offer Apprenticeship Training?

I am willing to answer any questions, there is a lot of other really shady stuff going on there, that is so odd I have no idea if it is or isn’t legal. Any info would be appreciated. Or am I totally barking up the wrong tree? And that this is a case of a terrible company to work for that is technically following the law.

ANY help would be appreciated. I can answer any questions…. I am going to call him sometime in the next few days to confront him about this suspension thing. I need to know some law! I need to know what he can and can't do to me legally!

[cbg]

I know nothing whatsoever about apprenticeship training. I can't help you with that one.

If you worked 8 hours, you have to be paid for 8 hours. You MUST be paid for every hour that you work. You MUST be paid at the rate of time and a half your regular rate for every hour over 40 in a week. But it is legal to only pay you at minimum wage (as long as you're talking about the MA minimum wage, which is higher than the Federal minimum wage). That's what minimum wage means; you can't be paid less than that, but legally your employer has no obligation to pay any more (barring a bona fide contract to the contrary, which it doesn't sound as if you had). Training, at least in this instance, is irrelevant (unless there's something in the apprenticeship issue).

We can't tell from here if your apprenticeship agreement is a bona fide contract or not. That's something that can only be determined by a local attorney. But it is not legal to have you working uncompensated hours at all.

It is legal to leave you in the Varnish room forever if he wants to, unless you have a bona fide contract that says otherwise (and again, only a local attorney can tell you if you have one or not. I would tend to doubt it.)

A suspension is a form of discipline in which you are sent home from work, with or without (usually without) pay. A non-exempt employee, which is what you are, can legally be suspended without pay indefinitely. The law does not dictate under what circumstances you can be suspended. He does not have to give you a reason. It's kind of pointless not to, but it's not illegal to refuse.

It is legal for him to stonewall you till you quit.

Unless he is able to prove to the satisfaction of the unemployment commission that you were fired for misconduct, and I wouldn't think he could, you should be able to collect.

If you have other questions, by all means ask them. I hate to hear about employers like that.

[CompensationCounsel]

There is an exclusion under the MA minimum wage law for training time conducted in a "charitable, educational or religious" insitution, and there are a number of opinions from the DOS that cover vocational programs, Northeastern's co-op, etc.

But, those programs have to be governed by the Attorney General's Public Charities Division (for the charitable exclusion) or have to be bona fide religious insitutions. For the "educational" exclusion, the DOS looks to the "totality of the circumstances to evaluate a particular training program." If they find that the program is a legitimate training program (factors include whether the training is an integral part of the program, whether the students receive academic credits, etc.), then there is no "employment relationship," and there is no minimum wage requirement.

These cases also deal with training for folks like waiters and waitresses. In those situations, the pay during the training period has to be regular minimum wage because they are not tipped employees until they complete their training.

Sounds here like the "educational" prupose is merely a front for a commercial enterprise. In which case, every "student" likely would be entitled to minimum wage and overtime for all hours worked.

As to the suspension, you may have a great case for a retaliation claim. This would be based on the fact that you were suspended for complaining about your wages. The Supreme Court just came out with a decision last month dealing with a similar issue and ruled in the employee's favor.

As to the unemployment claims, I've got nothing to add to cbg's comments there (I rarely do). You might explore a theory that by putting you on indefinite suspension immediately following your complaints of wage violations, he actually terminated you (the legal words here are constructive termination).

You should speak with your lawyer and the Attorney General about this.

Phil

[ElleMD]

Ditto on the having to pay OT after 40 hours in a week and pay for all hours actually worked. File a claim with the State DOL for those.

Being a jerk and calling you an Apprentice is not illegal. Trademark infringement aside he could call your position Mickey Mouse so long as he was paying you correctly. While there is a carve in from minimum wage in federal regulations for those enrolled in vocational courses, that doesn't appear to be the case here.

While you can not be fired for reporting illegal behavior, it is sounding more like you were just arguing with the boss over how you felt the company should be run. No law permits you to argue with your boss or "confront him and tell him how the company is a sham".

[rjc]

I would file for unemployment, but I would not quit then file. Rather, I would file now and simply notify the DUA of the circumstances you have made known in your post.

Because you did not voluntarily resign, then the burden would be upon the employer to demonstrate that you were suspended for a knowing violation of company policy and/or deliberate disregard of its reasonable expectations. However, regardless of the reason, no person can be disqualified from unemployment if the suspension exceeds ten (10) weeks.

See M.G.L. c. 151A, Section 25(f):

(f) For the duration of any period, but in no case more than ten weeks, for which he has been suspended from his work by his employing unit as discipline for violation of established rules or regulations of the employing unit.

[Woodworker]

Man, you guys rock....

Thanks so much for the information. I am going to go to my employer now and bring up some of the issues you guys have brought to my attention. I am also going to ask him point blank if our furniture company is recognized by the state as any sort of Apprentice training program or anything. Like electricians and plumbers have apprenticeships.

I am also going to ask him for a copy of the agreement I signed when I started working at the Company, and also copies of my time cards and punch cards for my employment so I can see tabulate how many hours I was not compensated for.

I will let you know what he says. If I had to guess, I would guess that he will deny all my requests and stonewall me. But I will let you know....

Thanks again everyone....

[cbg]

Just as an FYI, he is not required to provide you with copies of your time cards or punch cards. (Going forward, there is nothing stopping you from making copies before you turn them in.) But if you file a wage complaint with the AG's office, you don't have to prove what hours you worked; he has to prove you didn't work the hours you say you did.

[Woodworker]

What to do...

So I arrived at Mr. X's company with one purpose in mind. To see if he is actually an official Massachusetts Department of Labor Apprenticeship provider.

We sat down and I asked him what he would do if I filed for un-employment. He told me he would deny the claim, but that I should file anyways.

I asked him if he was an official Apprenticeship program that is certified by the State. He said no. So I asked him if the company had any special distinctions, like being a charity or something like that. He said no. So I said "So from the State's perspective you are just a normal employer without any special status or designation". He said yes.

I asked him for copies of the "Apprenticeship Agreement" I had signed with him. He said he had lost them. I didn't believe him at all, so I asked him if he was sure, he said he defiantly lost them.

At this point he was getting really defensive and told me that I had to leave and that I needed to come back with a lawyer if I wanted to talk. So I left.

Now, the next day I got an envelope in the mail from him which had my last paycheck in it, along with the paperwork he claimed to have lost. Also a small note informing me I had now been terminated. And the reason he is officially giving for my termination is that "I didn't work the hours he requested" Which is true. Towards the end of my employment I had reduced my hours because I was sick of working so many uncompensated ones. However, I was not fired at that point. I worked for him for another full month before I was suspended. I am sure it was because I started bringing up the legality of his company and how it is screwing people over.

The papers that I had signed for him had all sorts of lines in them about working uncompensated hours, but they were followed by lines giving the state law for Apprenticeships that allow for those uncompensated hours. In the papers I signed for him he had laws quoted that didn't apply to his company! For instance this was in one of the papers I signed:

"Per Section 785.32 Apprenticeship Training of the U.S. Department of Labor, Fair Labor Standards Act, any payments made during this period do not constitute hours worked"

Now that I know that Mr. X's company isn't an actual apprenticeship program, the whole thing seems fraudulent to me.

So the whole of it is, that there are papers I signed saying I would work uncompensated hours, but they were with my understanding that there was some legal reason he was able to do this. I thought he was offering a real Apprenticeship. Turns out, that was a lie, or a misconception. So what does this all mean? Do those papers I signed trump State minimum wage laws? Where do I go now? His whole operation may be pseudo-illegal, what authorities could I report him too? I want to talk to a lawyer about the whole thing, maybe I am just confused and everything is legit. Don’t know, but I don’t think so.

[Marketeer]

You report him to your state department of labor.

He doesn't get to deny you unemployment. You should file for unemployment. He will be notified. He can contest it, but the unemployment commission will investigate and determine whether you should receive it or not.

[rjc]

As Marketeer stated, the employer neither denies nor grants unemployment, but rather can only argue that they should not be liable.

While his argument will certainly be that your were terminated for misconduct, to wit, not working the scheduled hours, I think his argument completely falls apart where he permitted you to continue to work for one (1) month under those same circumstances. In other words, he condoned the very actions he will now claim caused him to fire you.

Be careful to offer a full and complete explanation to the DUA when you file. I would be very, very surprised if you were found ineligible by the very liberal DUA.

Seeking the advice of local counsel for all of these matters may be a very good idea.