Labor Law advice badly needed!

[photoguy]

What is the name of your state? PA

I am a photojournalist who works for 3 weekly newspapers, all belonging to the same parent company, in Pittsburgh PA. I have had this job for over 3 years now, and certain conditions/situations are becoming intolerable. It is not easy to find photojournalism jobs, so the simple solution of quitting and finding another job is not quite so simple. Let me describe my conditions.

I am given 34 hours a week, so I am considered part time, and recieve no benefits of any kind. This is not the problem however, I knew that coming in. I state it only to give an idea of the kind of place I work for--its almost like a full-time job but with no full time benefits or security of any kind.

I have 34 hours and I am not allowed to go over that amount. However, I am frequently assigned work that exceeds 34 hours total, as I am to generate enough material for these 3 weeklies. Attempts to go to my editors and request permission to drop this assignment or that so as to not go over is regularly met with hostility and non-cooperativeness. If I go and shoot such assignments and mark the accurate hours down on my time sheet, over the 34, I am threatened with termination. If I refuse to do the work that pushes me over the set in stone limit, that too is met with hostility and an unsaid feeling that if I dont do the shoot, I will be fired.

I'm no legal expert, but the upshot of it is that quite often I am working for free for this company, as I need my job. This has to violate some kind of labor law, and this company has had (before my time, unforunately, so I dont know the details) and lost labor disputes before.

I am damned if I do and damned if I don't here, it seems. And it is a matter of high stress and upset feelings, as I do good work, I take pride in it and get the job done time and time again, and I recieve no compensation or even simple "Thanks--good job" for it.

Please send your advice. I'll keep sending out resumes.

--Tim

[cbg]

Whether or not this practice is legal or illegal depends upon whether or not you are considered exempt or non-exempt. If you are non-exempt this is indeed illegal. If you are exempt then there are no circumstances whatsoever in which you are legally entitled to more than your weekly salary. Please note that there is nothing whatsoever illegal about paying a part time employee on a salaried basis as long as they are legitimately classified as exempt.

Your job duties will determine whether or not you SHOULD, under the law, be considered exempt or non-exempt, and for that I will have to refer you to the DOL website at [url]www.dol.gov.[/url] Look under Fair Labor Standards Act and under Exemptions once there. However, to determine whether you are being TREATED as exempt or non-exempt, please answer the these questions: If you work less than 34 hours a week, how much are you paid? Do you get the full salary or is your salary docked by the number of hours you were absent? Is this true for both full day and partial day absences?

[Beth3]

cbg, I strongly suspect he qualifies for exempt status under the Professional exemption:

- They work in fields requiring advanced knowledge and education, and they do original and creative work in artistic fields.
- They exercise discretion and judgment.
- Their work is intellectual and varied in character and can't be accomplished according to a time schedule.
- They don't devote more than 20% of their time to non- professional functions.

And as you surmise, if they're docking his pay if he's absent (other than in a very few, very specific situations allowed by the FLSA), the employer is violating the law.

photoguy, please comment on this.

[photoguy]

While the position may seem at first glance to be exempt (as small newspapers are listed as an example under the Fair Labor law) this is not a salaried position--its paid by the hour, at a very embarrassing rate. If say, I'm assigned 36 hours of work, 2 above my 34, the company loses less than $20 bucks. A half-hour over? Less than $5, and I get dire threats from my supervisiors for actually going out and doing the work I was assigned to do.

Thats basically the crux of the problem--Those who handle the company budget have set in stone part-time people can only get 34 hours, but the reporters and editors who set up the photo assignments regularly give me anywhere from 36-40 a week. And the stress of being torn between those conflicting orders is considerable, and quite often I find that, in order to just get by without hassle, I am doing the company work with no compensation.

This seems and is wrong to me, but is it legal?

I'm also unsure as how or if anything can be done. There are no time clocks, and the nature of the profession has me out in the field at odd hours, long lengths of time, whatever the needs the paper has for that week.

[JETX]

On a related issue.... What will you do with any information that you receive from this site??
You have already said that this job is hard to find. You apparently are reluctant to quit. And yet, any action that you take will ultimately cause a loss of your job.

So, your REAL options as I see them are:
1) Find another job that is more to your liking, or
2) Contact your local DOL office and find out if your employer is in violation of labor practices. And if it is, then you will very likely be unemployed in a few weeks or months anyway.

Seems to me that no matter what you find out, your actions are already pre-determined.

[HomeGuru]

The National Enquirer needs good photo journalists. I once saw a cool photo of an alligator with a human head. Those "Kodak moments" are very difficult to find.

[photoguy]

JETX,

Well, I posted here to find out really what my real legal options and rights were. To non-lawyers such as myself, figuring all of this out is like groping around blindly in the dark. I'd rather post here and seek the opinions of lawyers or people with more knowledge and experience and thus educate myself that way than to go out, obtain the services of an attourney, and find out afterwards that there is no case at all.

That's what I would like to find out, and I thank all of you who have taken the time and effort to respond. Are there grounds for a lawsuit or not, or if its a case of 'report the actions to the DOL and prepare to find a new job'? I realize fully that staying with the company in either situation would be impossible, nor would I want to--I'm just trying to make ends meet.

[JETX]

"Are there grounds for a lawsuit or not"
*** This is the very FIRST time that you have raised the issue of a possible lawsuit. Your first post only said "
Please send your advice".

The reality of classification for exempt or non-exempt, and whether you are due compensation for hours worked over 34 are both vague and ambiguous. Though we can certainly offer opinions (and both Beth and cbj have done so), that is what they are.... opinions. The actual determination of YOUR status can only be determined by YOUR state DOL.

Personally, I think that you are due compensation for EVERY hour that you work, whether under 34 or over 34.

To be specific.....
Can you file a lawsuit over that underpayment?? Of course you can. Would it be practical to do so?? Of course not. Not only would it cost you several thousand dollars, but you will very likely be unemployed. Is it logical to contact your local DOL and file a complaint?? Your call. It won't cost you anything, but the chances are pretty high (in my opinion) that you will still likely be unemployed.

[Beth3]

It is not illegal to pay an individual who is in a position that qualifies for exempt status on a non-exempt basis. (The reverse is not true however.) But if they pay you by the hour, then they must follow the rules, ALL the rules, on how non-exempt employees must be paid. That includes your employer keeping an accurate record of all the hours you work and then paying you accordingly.

You are free to file a wage and hour claim with your State's DOL or with the federal DOL. Whether you wish to do so is your decision. Good luck with the job search.