Employee AND Volunteer

[kismetique]

What is the name of your state? Texas

I have worked for a museum as an admin assist for a couple of years. This museum is owned by a local municipal government. Outside of work hours, I did volunteer work as well. Recently, I volunteered to create a website, to which the museum accepted. In order to qualify for a tax deduction, I copyrighted the site under my small business name, then donated it to the Foundation (501 C 3) associated with the museum, not the city organization. Recently we (as the museum staff) decided to add an online store to the site. This work would have to be accomplished in tandem employee/volunteer capacity since the financials would be handled by me at work, but the maintenance of the site would be handled by me at home after hours.

As an employee I was experiencing great difficulty getting the city organization to cooperate, so I posted a statement on the site to this affect: "Due to limitations by such and such deparment, there is no online store at this time, we apologize for any inconvenience". This was posted by myself in the capacity of a volunteer. Apparently someone a bit higher up than me decided they didn't like this TRUE statement and my immediate supervisor was told to threaten to fire me. By sheer coincidence, the wording was changed the evening prior to his threat and my knowledge about the whole issue. I was told it was a good thing the wording had changed, or I would have been immediately terminated - furthermore, I would be terminated if it happened again. I was told I would get a severe reprimand letter in my file. I have never before been reprimanded and have received very good performance reviews.

The following day, my supervisor called me into his office and I was handed a very short memo stating that he had spoken with me, but no particulars were mentioned and no reprimand was really being issued, but that the memo would still be placed in my employment file - more of a counseling than reprimand he said. I asked him if he were reprimanding/counseling me as an employee for work performed as a volunteer - to which he didn't answer. I then asked him if the statement I posted on the web was a true statement - to which he said yes it was. I then told him if he wanted to reprimand me as an employee, he would have to pay me for work performed and handed him a bill for $7500 for all the work I have done as a volunteer in the way of graphic design (several ads, brochures, & the site). He said he would speak with his supervisor and get back to me - which he hasn't and is dragging is feet and keeps asking me if I wouldn't just like to drop the whole thing - however, the memo would still be in my file!

My question is - can they reprimand me as an employee for work performed in the capacity of a volunteer? Several volunteers have gotten out of line, but have never been reprimanded, so I told him to do so would be discriminating against me, and he had no comment to that either. Human Resources has not been called in as of yet - should they be? I've been told by another supervisor within the organization I should also contact EEOC - for what I'm not sure!

Any ideas or suggestions? Do I have a leg to stand on or just a short little nub? Maybe I should just drop it and keep my mouth shut and my fingers off the keyboard?

 

[cbg]

What in heaven's name gave you the idea that if you're a volunteer you cannot be reprimanded? OF COURSE a volunteer can be reprimanded. It may or may not be a good idea depending on circumstances but there is certainly no law that prevents it.

Unless you and only you were reprimanded BECAUSE OF your race, religion, national origin, disability, gender, pregnancy, or because you are over 40, there was no illegal discrimination.

It is my opinion that yes, HR should have been involved, but no law was violated because they weren't.

 

[rmet4nzkx]

I think what they were meaning was if they were repremanded as a volunteer it should not go in their employment record, other volunteers don't have employment files to put repremands in, but if they were going to repremand them as an employee, espcially for something that was a true statement or full disclosure and put it into their employment file, then they should have been compensated for their work. Disclaimers reguarding budget shortfalls are common on civic websites so not unusual.

 

[cbg]

It's still not illegal. It may or may not be fair, but it is NOT illegal and it is NOT illegal discrimination.

 

[kismetique]

Thank you rmet for clarifying. Sometimes when your so emotionally close to a situation it is hard to relate the details clearly.

Nothing would ever give me the idea that I couldn't be reprimanded, both as a volunteer and most especially as an employee. But I know I shouldn't be singled out and reprimanded JUST because I'm an employee - this is not a private business - we are talking public entity, which usually has stiff rules about what can and cannot happen with regards to employees - supposedly, according to the policy manual unless I killed someone or stole something, I must be written up several times and cautioned before I can be terminated. We have had some volunteers do some real NO-NO's - big time NO-NO's, but no one has ever said a word to them - ever.

And rmet - your exactly right in what I was trying to convey - can they reprimand me AS AN EMPLOYEE - for work performed off the clock, in my own home, at my own expense, for which they were well aware I was doing? Obviously, someone in authority gave me the user name and password to the ISP so I could upload the site I created - again, completely on my own time and at my expense. And by the way, I'm not afraid of loosing my job - we can eat without my paycheck, vacationing would just be cut to a minimum.

I have asked that HR be involved, but so far that hasn't happened. Since my personally owned company held the copyright on the site, I took it down completely and resigned my position as a volunteer. And now that has seemed to have irritated them as well - there just seems to be no pleasing them suddenly. Additionally, I feel a bit threatened and feel there will be some sort of retaliation since I am somewhat fighting the reprimand. Today, I received an email from another department requesting that I design a brochure and forward them a proof. My job description is that of a secretary - not graphic designer! All of my design work was done at home, off the clock and at my own expense.

I want to thank everyone for their time and willingness to share their knowledge. I do appreciate any help or suggestions that anyone has, but there really is no reason to speak to me like I'm an idiot - because I'm not. That really doesn't help and afterall, if I knew it all, I wouldn't be here asking.

 

[cbg]

If it sounded as if I were saying you were an idiot, I apologize. That was not my intent. An idiot wouldn't even think to ask the question.

I understand that you are asking whether your employee and volunteer status can be mixed; that your employment status can be affected by something that happened as a result of your volunteering. Whether it's right or wrong; whether it's fair or unfair; the legal answer is yes, it can. I'm not saying it's fair; I'm not saying it's right; I'm not saying it isn't a violation of company policy. I'm saying it's legal. A company is not required to follow their own policies unless failure to do so would result in the violation of a law. That does not appear to be the case here, unless there are MAJOR facts that you have left out.

I know this is not the answer you want to hear. It is, nonetheless, the legal answer to the question you have asked.

 

[kismetique]

cbg - Thank you for your reply. Actually, I really wasn't looking for any particular answer - just some insight and some information. If there is nothing there - there is nothing there, period. I'm fine with that, but I would welcome the opportunity to discuss other ideas or directions I could go with this.

I say that, because something isn't quite right and I'm still trying to figure out where they are going with it all and why it is in stall mode. The counseling memo is currently in limbo and has not yet been placed in my file - but I can't figure out why! Additionally, if I choose to file a grievance, I have only 10 days from the initial action - so my days are numbered.

A year or so ago, HR got wind of my doing the design work and called me, my supervisor and his supervisor and cautioned us all heavily that I was not to be working off the clock - something to do with the labor law and compensation for work performed - especially overtime - so I called it volunteer work as donated by my small business. They kept mentioning claims being filed with the Labor Board for work performed and not paid for. I was told by my HR they have to pay for time the employee works even if they didn't get approval to work the hours - so I was NOT to work ANY hours that I didn't turn in! They do not want employees showing up before 8am, and you must be ready to walk out of the door at 5pm or the supervisors are having fits! If they won't allow an employee to work off the clock due to labor laws, they will then allow an employee to be written up for work performed off the clock in the name of insubordination?

My supervisor won't answer questions - so I presented him with a memo outlining 6 specific questions I wanted answered and he now avoids me and the situation. The issue should come to a head within the next week - two at the most and decisions will have to be made with regards to pending design work that I was in the middle of - which of course now will have to be hired out by them from the beginning as the pending design is owned and copyrighted by my personal company - until I actually donate the finished product to the Museum. Would this be yet another issue they could write me up for?

So here is another spin on the situation - I have owned and operated my business (with a couple of family employees) for 5 years. Shouldn't my company be the one getting the reprimand, especially since that company owns the web site/web pages in question - not the municipality? While it was in fact myself that posted the particular message in question - it could have easily been my son who does (and is paid for) design/web work for my company at times.

While I agree with you that there is most likely nothing illegal - I don't want to sue them! I've done that in the past with a previous employer and although I won, the stress and strain was not near worth it! So - I don't have any desire to make this a legal battle or issue - I just want to complicate matters enough that they don't feel comfortable writing me up. I find another job, give my 2 weeks and quietly slip away with my good work record in tact - and hopefully a valuable lesson well learned!

Something (and it may be something I'm overlooking or not understanding) has them scared - scared enough NOT to call in HR on the issue, even though I've asked them to - and scared enough NOT to talk to me about it or deal with the issue - I can tell my immediate supervisor is avoiding discussing it with his supervisor as he called in sick (very unusual) the day he was to meet with him regarding this issue. It's making for very long work days and stressful dealings with fellow employees.

Again, I appreciate your earlier response and will understand if you choose not to continue this conversation - as having previously given your opinion. Of course, I'm grabbing at straws now - as I want the situation resolved and to put this behind me!

 

[cbg]

When you said you were volunteering, I thought you were talking about as part of a "Friends of the Museum" type capacity. Your HR is 100% correct about the labor law and the confusion involved there. Your calling it volunteer time does not relieve them of the obligation to pay you for all hours worked. They are required under the law to pay you for all time worked, and you cannot legally waive your right to be paid for that time.

This new information not only does not change the answer, but from a labor law perspective it actually ENHANCES their right to reprimand or write you up for insubordination.

No, they have no obligation to reprimand your company instead of you personally.

If you don't want to sue them, don't. I'm confused as to what you would sue them for, anyway. They haven't broken any laws.

You're there and I'm not, but I do not necessarily agree that their failure to call HR means that there is something they are scared of or something you do not know about. I know all too well that HR is frequently, in many, many employment situations, the last to know about things that they should have been involved in from day one, and relates to the number of supervisors who either overestimate their own ability to handle things, or underestimate their knowledge of the appropriate laws/company policies/regulations.

 

[kismetique]

Thank you again cbg, for your help.

I've done some research on FLSA and if your willing - have a couple more questions.

According to the statute -
§ 785.44 Civic and charitable work.
Time spent in work for public or charitable purposes at the employer’s request, or under his direction or control, or while the employee is required to be on the premises, is working time. However, time spent voluntarily in such activities outside of the employee’s normal working hours is not hours worked.

The work was requested and was known to be occurring by my supervisor - In fact, I have supporting documents that show where he was directing the progress of all documents. There were never any formal arrangements such as an volunteer application or to log my hours as volunteer hours, nor did I receive any paperwork to show anything had been donated.

For more clarification, I did not have the capabilities to perform graphic/web design services on my work computer; hence the reason for doing so on my home computer. Employees of the same pay grade, located at other sites within the same organization, were given the appropriate program and were expected to perform web design as part of their normal duties.

As I was unaware of my inability to waive my rights to being paid, can I legally request back payment for these hours worked?

If they refuse to pay, can I then file a claim with the Labor Board?

As before - I truly appreciate your time and patience.

 

[cbg]

How long ago did you work these hours?

 

[kismetique]

Well...let's see, I've been working here for over 2 years - so I'd say for a little over a year up until the present (well, until last week when I got my hands slapped!)

 

[cbg]

Then you should still be able to file a claim for all of those hours. You are still within the window.

 

[kismetique]

Follow-up Question

I filed a grievance within the City system to exhaust all my administrative remedies on getting my back pay. I had a hearing, which I and my attorney attended. The hearing was not closed as the committee asked for additionally emails from my supervisor that were sent to my personal home email address, which I provided within 4 days.

In the meantime, I started being harrassed. First the accounting department questioned something on my credit card statement, I replied in email, then they said they ?LOST? my email and I needed to resend it....they should have contacted my supervisor in the first place, not me. I ignored the email and never heard another word.

Then my supervisor calls me in and says he is going to change my work schedule from Mon-Fri to Tue-Sat. I would be working totally alone in the building. I'm a support personnel (secretary), no management duties so I'm not really qualified, according to the City, to be left alone and there are numerous safety issues I have brought up in the past. The building I work in has direct access to an International Airport tarmac with NO security and no way for me to monitor this access and I refuse to take on this responsibility. Additionally there are fire hazards which have not been addressed...etc.

Bottom line, he asked me what I would do if he changed my scheduled work days. I told him I would give my 2 weeks notice because I'm not qualified and I refuse to take responsibility for airport security issues as a secretary! The following day he gave me a memo that changed my scheduled work days. The memo was half-hearted and didn't change my hours (8am - 4pm) to reflect the time the Museum is open (10am - 6pm) - so my shift would end before the building is to be closed for the day. It made no sense - other than coersing me to quit!

I filed another grievance stating retaliation to my previous FLSA claim and my last day was last Friday - with no acknowledgement from anyone. I have everything documented and emails to back everything up - including an email where my supervisor says I am not to be left in the building alone and documented safety concerns (fire hazards and tarmac security) from our safety department! No one at the City is speaking to me anymore - my lawyer (who is criminal law and will not continue to represent me in this matter) says they are worried in his opinion.

My question is, should I just file with the Department of Labor for my back wages in excess of $10K or should I get a new lawyer and file a suit due to the retaliation. I have no job at this time.

 

[SuzieWahoozie]

Answer

If you feel you are owed wages, by all means, file a complaint with the Labor Board. It costs nothing. The Labor Board will determine if anything is owed and how much. You won't need an attorney to file your compalint with the DOL. What you will need is documentation of all the hours you worked and that this work was done with the knowledge and under the direction of the employer.

As for needing an attorney for some other issue, I can't see where that's needed. Other than not paying you due compensation, I cannot see anything illegal in the employer's actions. I suppose if you have been terminated (I'm not clear from your post), it could be retaliatory, but so far it appears your remedies have been "internal" - filed within the employer's systems/policies. Illegal retaliation really only occurs when you complain to an outside entity - EEOC, OSHA, EPA, etc. and face an adverse employment action because of that complaint.

Your employer has certainly handled the situation badly, but I don't see anything illegal, except potentially the wage payment issue, which I suggest you address with your state DOL.

 

[Dash8Driver]

I filed a grievance within the City system to exhaust all my administrative remedies on getting my back pay. I had a hearing, which I and my attorney attended. The hearing was not closed as the committee asked for additionally emails from my supervisor that were sent to my personal home email address, which I provided within 4 days.

In the meantime, I started being harrassed. First the accounting department questioned something on my credit card statement, I replied in email, then they said they ?LOST? my email and I needed to resend it....they should have contacted my supervisor in the first place, not me. I ignored the email and never heard another word.

Then my supervisor calls me in and says he is going to change my work schedule from Mon-Fri to Tue-Sat. I would be working totally alone in the building. I'm a support personnel (secretary), no management duties so I'm not really qualified, according to the City, to be left alone and there are numerous safety issues I have brought up in the past. The building I work in has direct access to an International Airport tarmac with NO security and no way for me to monitor this access and I refuse to take on this responsibility. Additionally there are fire hazards which have not been addressed...etc.

Bottom line, he asked me what I would do if he changed my scheduled work days. I told him I would give my 2 weeks notice because I'm not qualified and I refuse to take responsibility for airport security issues as a secretary! The following day he gave me a memo that changed my scheduled work days. The memo was half-hearted and didn't change my hours (8am - 4pm) to reflect the time the Museum is open (10am - 6pm) - so my shift would end before the building is to be closed for the day. It made no sense - other than coersing me to quit!

I filed another grievance stating retaliation to my previous FLSA claim and my last day was last Friday - with no acknowledgement from anyone. I have everything documented and emails to back everything up - including an email where my supervisor says I am not to be left in the building alone and documented safety concerns (fire hazards and tarmac security) from our safety department! No one at the City is speaking to me anymore - my lawyer (who is criminal law and will not continue to represent me in this matter) says they are worried in his opinion.

My question is, should I just file with the Department of Labor for my back wages in excess of $10K or should I get a new lawyer and file a suit due to the retaliation. I have no job at this time.

WOW WOW WOW! If you have a public building with no security that has unrestricted access to a Commercial Aviation ramp, NOTIFY THE TSA immediately! Most cities "own" the property an airport is on and thus set the rules for who and when can be on those ramps, but all ramps that "house" commercial aircraft, passenger aircraft, cargo aircraft, etc have to be secure, especially if that ramps connects to other ramps with commercial aircraft on them.

Now if the ramp is simply for general aviation, ie no scheduled air carriers United, USAir, etc, then there does not have to be a security and that ramp is not connected/near a commercial ramp.

Sorry to hijack your thread for something off the wall but I'm an airline pilot and the last thing I want is any commercial ramp unprotected.

D8D