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Call to Confirm if coming to work

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  • George Gen
    replied
    So sorry for the delay in responding!

    We have to call in at least 30 minutes before our shift starts, or else the manager will call in a replacement. We all have to do it, and we are paid hourly. If it happens too often we could be fired.

    Leave a comment:


  • Worriedspouse
    replied
    I realize that the OP has not returned to provide some needed answers, but I must throw my two cents into the mix. It's possible, providing the OP is non-exempt, that required calls could be determined to be hours worked. The question would then become are they a principle activity. Not likely in my opinion.

    Going back to the case cited by RRPayroll, this is one I've been following. Even the judges of the 9th Circuit couldn't agree. Heck, they even state in their ruling that the FLSA definition of the workday has "some inherent ambiguity" in 29 U.S.C. ยง 254(a)(2). Obviously, they even disagree with the US Supreme Court ruling on the continuous workday. It should be based on "principle activity". First and last defines the workday. Even though they ruled the transmission of data was a principle work activity, they ruled that the drive home from the last customer's location was not compensable. That flies directly in the face of both the Portal to Portal Act and the Supreme Court's ruling in Alvarez v. IBP, Inc. and Tum v. Barber Foods that travel from one workplace to another is all in a days work and therefore compensable. There's so much more but that's enough for now.

    Leave a comment:


  • Betty3
    replied
    I'm interested also. That's why I asked if OP was the only one who had to call
    in & if so, why.

    Leave a comment:


  • HRinMA
    replied
    I would be interested in hearing why he must call to say he will be in. This could be a case of winning the battle and losing the war.

    For instance, OP is unreliable and late often. So the phone call allowed the boss to know if he needed to replace OP on the shift. If OP complains about being paid, boss may decide to fire OP for the lateness instead.

    Leave a comment:


  • DAW
    replied
    I can come up with court cases that say the time spent on phone calls at home are compensable. The fact that the employer is requiring the phone calls to be made is enough to make the phone calls compensable. If it was once in a blue moon, say the employer requiring a call in when the employee is NOT reporting to work, then a De Minimus argument is possible. But requiring the phone call at a fixed time each and every day shoots the heck out of De Minimus.

    If the phone call is required each and every day, it is very easy for the judge/ALJ to say that on average we are spending 1 minute/day, 5 minutes/week, 260 minutes/year. The fact that it is easy to give a good estimate means not De Minimus.

    Worse, there is a lot of related case law because employees have tried to argue that getting up (for example) 1.5 hours early means that the work clock starts then, that all time from that point is hours worked. Court decisions have said that this is not true, that time spent on the phone call and only that time is hours worked. The closest exceptions is that there are so many phone calls that the employee cannot use the time for their own. Basically an "on call" argument. Which is not what is happening here.

    Similar cases involved computer time where the employee signs in, picks up their days work assignments, then goes to the their first in-the-field location based on what their computer told. The argument was that because they started working at home, the first drive is not a commute. This argument failed in court, but the time spent on the computer at home is hours worked. This is pretty firm law. A lot of court cases saying pretty much the same thing. Even if one can find a court decision going the other way, it would be legally applicable in that one court jurisdiction (at best). The Portal-to-Portal Act is a pretty huge hill to climb with not just sixty plus years of court decisions, but several U.S. Supreme Court decisions, which no possible lower court decision can override.

    Leave a comment:


  • Beth3
    replied
    We're talking a 6 second phone call five days a week. "Hi, boss. It's George. I'll be at work today." That's 30 seconds a week x 50 weeks (let's assume George takes two weeks vacation per year) and is less than 15 minutes in an entire year. So if George makes $20 an hour, we're talking about FIVE DOLLARS less withholding - so it means maybe three bucks to George.

    Hardly seems worth the fuss.
    Last edited by Beth3; 05-10-2011, 09:40 AM.

    Leave a comment:


  • Betty3
    replied
    After the info you posted, the article says:

    However, the court sent the case back to the trial court for it to determine whether the post-work activities were compensable. Court: Uploading data to the company's server appears to be part of employees' regular work. However, the company could be still be entitled to a ruling in its favor, if it's determined that those post-work activities are de minimis. Those activities may or may not be de minimis, since evidence suggests that there were frequent transmission failures, which would require more of employees' attention.

    TIME & MONEY: This case is far from over, and the employees may yet prevail. Worse: The court gave the OK to using time estimates, if accurate records of employees' post-work activities don't exist, as they might not, since the company never thought they would have to track this time in the first place. Therefore, it's to the company's advantage to have a clear understanding of exactly what employees do before and after their workdays. This is particularly important, since technology makes working from home easier. Employees can, for example, check their e-mail before and after work. But technology cuts both ways โ€” it also makes tracking employees' time easier for you, so you may be on the hook for even these small amounts of time.


    We need for the OP to come back & answer all questions.

    Leave a comment:


  • RRPayroll
    replied
    This case had to do with uploading data onto handheld devices before and after they finished work each day, so it does not correlate perfectly. But it is worth noting.

    FLSA TERMINOLOGY: Integral and indispensable activities are performed as part of employees' regular work in the ordinary course of business, regardless of when those activities are performed (i.e., before or after the workday). De minimis activities are activities that take a few seconds or minutes beyond the scheduled workday to perform and that are administratively difficult to account for.
    Not so fast. The appellate court first ruled that employees' preliminary activities weren't compensable, because they weren't integral to their principal activities. Court: Employees' preliminary activities โ€” receiving, mapping, and prioritizing jobs and routes โ€” weren't compensable because they were primarily related to commuting, which isn't compensable. In any event, the preliminary activities were de minimis, the court concluded.
    http://www.legalworkplace.com/court-...pay-payla.aspx

    The case got sent back to appeals to debate the post-work activities. But since the technicians had to do this each and every day (and the time spent was likely more than what a phone call would be), there is the possibility than a De Minimis argument could stand in this scenario.

    Leave a comment:


  • DAW
    replied
    A good argument could be made that the phone call is time spent working. If it is done every day, then a De Minimus argument would fail (one of Betty's questions). So likely the total time actually spent on the phone call could be legally hours worked under FLSA.

    If you are Exempt and Salaried, then hours worked are not meaningful (one of Betty's questions).

    Which still leaves Betty's other questions.

    Leave a comment:


  • Betty3
    replied
    Are you non-exempt?

    Are you talking about every day? Are you the only employee who has to do this?
    If so, why?

    Thanks.

    Leave a comment:


  • George Gen
    started a topic Call to Confirm if coming to work

    Call to Confirm if coming to work

    My boss is asking me to call half and hour before my shift to confirm I am coming to work - does he have to pay me?
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