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Not Paid when showing up to work? Massachusetts

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  • Not Paid when showing up to work? Massachusetts


    I'm asking this question for a friend...

    She works as a therapist at an educational program for special needs students. This is NOT a school. This is a private, not for profit, organization which focuses on these students specific special needs.

    The therapist is paid based on how many sessions she has with the students. This is generally not a problem. However, she was just told that, "If a student does not show up for the therapy sessions, she will not be paid for that hour."

    Considering that these students have learning/social disabilities, it's not uncommon for a few to forget or just skip their therapy sessions without notice.

    My question is: If the therapist shows up to work (this is scheduled by the company) and the student does not arrive, can the company choose not to pay her? Secondly, is there a specific law that she could reference in arguing against this policy?

    Thank you for any advice you can offer,

  • #2
    Short answer is that the employee probably needs to be paid something. A longer answer would involve exactly which laws are involved, and how smart the employer is and what the specific state laws are. Example. Lets say Bob is in a similar situation. Bob shows up for work when directed. As per company policy, Bob waits 15 minutes, then leaves. Under federal law only (FLSA), Bob is due 15 minutes at minimum wage. Different states have different rules. These rules can be more favorable to Bob then the federal rules, but not less favorable. The federal rules act like a floor, not a ceiling. Past that, if the employer was not too bright, they would have failed to tell the employee that waiting time is paid at minimum wage. The employer cannot under federal law fail to pay the employee for any time that under federal rules the employer has "sufficently restricted" the employees actions to trigger the federal hours worked rules. But the feds do not care about commute time or cost, and if the employee immeadiately leaves upon arrival, that is not hours worked under the federal rules. The feds also do not care about base pay in excess of minimum wage. If we have hours worked under federal law, and the employer failed to specify minimum wage for waiting time ahead of time, then there is a good chance under state common law (small claims court and maybe wage claims), that under state rules we have hours worked at normal rate.

    Now MA law is whatever MA law is. There are other responders who are better at MA law then I am, so I will leave that to them.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)


    • #3
      Is she physically present at the same times every day? Or does she only come on site when she is scheduled with a client?
      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


      • #4
        This is the Ma. reporting time pay law:

        455 CMR 2.03(1)

        If an employee: (1) is scheduled to work three or more hours; (2) reports to work on time and is ready to work; and (3) is sent home by the employer before his or her scheduled hours have concluded; then the employee shall be paid for at least three hours at no less than $8.00 per hour.

        This provision shall not apply to organizations granted status as charitable organizations under the Internal Revenue Code.
        end of law

        Note you have to be *scheduled*/asked to come in for at least 3 hrs. before the law applies. If you were only scheduled/told to come in for 45 min. or an hr., you would only get paid for actual time worked.

        This law may not apply here.

        However; under federal law as noted by DAW above, she probably needs to be paid something under the federal FLSA.
        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.


        • #5
          Under federal law only, if the employee is sent home instantly upon arriving, then little or nothing is due. But that is not real world. In practice, unless the employe is allowed to leave instantly upon arrival, the employee's time is "sufficently restricted" that something is due. But extending the 45 minute example, if the employee comes in for a 45 minute shift, and leaves after 5 minutes, then under federal rules only 5 minutes is due, and only at the federal minimum wage. There is no federal reporting time rule, and even states with no reporting time rule (which is most of them) are more likely to care about wage rates in excess of federal MW.

          Since in this case, the state rules seem more favorable to the employee then the federal rules, the employee likely will want to go with the state rules and the related state law remedy.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)


          • #6
            I still want to know whether the employee is on site x hours per day regardless, or only comes in when a client is due. It would make a difference as to what laws apply. It would also be nice to know if we were talking about an exempt or a non-exempt employee.
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


            • #7
              It's a bit more complicated than I originally thought.

              She is paid as an independent contractor. She is asked to do multiple tasks in a day that usually add up to 5ish hours. Her average day looks like:

              10:00-11:00 - Therapy Session
              11:00-12:30 - Teach a Class
              12:30-1:00 - Lunch
              1:00-2:00 - Therapy Session
              2:00-3:00 - Therapy Session
              3:00-4:30pm - Teach a Class

              Each session and class is billed as a "fee." They pay $X per class taught and $Y per therapy session.

              The problem occurs when a student who was scheduled for their session doesn't show for their 1:00pm session. She is now stuck waiting around for an hour but the company has said they will not pay her for that hour. Additionally, they have told her that if a student isn't on time she must wait 10 minutes before trying to call that student and must wait an additional 5 beyond that before she can assume the student isn't coming and leave her office.

              Assuming a student doesn't show, she now must wait until 1:15pm and then she is stuck waiting around for the next student only 45 minutes later.

              As she's not a full time employee, it's difficult for me to accurately answer your questions as to whether or not she is expected to work a full 3 hours.


              • #8
                If she is legitimately an IC, then employment laws (including the reporting pay law) do not apply. All the answers will be in her contract.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


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