Comments on: Obama’s new overtime decree Chronicling the high cost of our legal system Mon, 30 Mar 2015 18:10:26 +0000 hourly 1 By: April 4 roundup - Overlawyered Fri, 04 Apr 2014 04:30:17 +0000 […] on complying with salaried employee classification [Suzanne Lucas ("Evil HR Lady") at Inc., earlier here and […]

By: Melvin H. Sun, 30 Mar 2014 07:47:50 +0000 And on a slightly different subject: Using the cases of the two Denver Bronco front-office men who were suspended for drunk-driving–one for 30 days, one indefinitely; neither AFAIK came in drunk to their jobs or team/NFL functions–at what point is an employee “off the clock” from his/her job, or are they always “on the clock”, and should be compensated as such?

By: Melvin H. Sun, 30 Mar 2014 07:41:20 +0000 Somewhat on the same subject, at what point is an employee on 24/7/365 availability for being called-in by management? Someone gets sick or is on vacation, you’re first in line to keep getting added hours on what normally is your off-days. Should an employee start getting paid for, in effect, being “on stand-by”/”on call”, and at what point can the employee say “no more, I can’t do it” without being penalized?

By: Ron Miller Fri, 21 Mar 2014 13:47:08 +0000 While we are playing all nice and all, I’m not unmindful of your point Git. I think your heart is in the right place on this one. In some bigger sense of the word, when the employer tells you that you can work under these terms of employment and then switches those terms, the employee gets wronged in the ordinary sense of the word.

I can prove this. If Cato calls Walter today and say, oh, by the way, we also need you to staff our “Convert to Libertarian” effort by handing out flyers at BWI airport every Sunday, we can all agree that Walter was wronged.

The question is whether that “wrong” should be actionable. That question, in my mind, hinges on whether the free market adequately addresses this problem in a macro sense.

I think it does. Walter has the option to leave Cato go think tank and write for someone else. (I have it on good authority that he sends a resume to the Daily Kos on a weekly basis just in case.) The employer is also motivated to not mistreat its employees like this because in the long run they will leave or become disgruntled and that is not a paradigm to maximize profits. So while there are individual wrongs that occur, the marketplace keeps those wrongs relatively limited which is why we have at-will employees in the first place.

I think, as a practical matter, people often stay in jobs they don’t want where they are not being treated well because they are comfortable and don’t feel like putting out the energy to get another job. I had an ex-girlfriend years ago who hated her job with an unmatched passion. Yet she was not even looking for a new one. She was a very sane person but she preferred the awful bird in the hand to the two in the bush. So it is not irrational. But we probably should craft laws to protect people who won’t make the effort to do what’s best for them.

The other option, of course, is that you don’t have to be an at-will employee. The employee can demand an employment contract if the market demand for that employee give him the leverage to make that kind of demand.

By: DensityDuck Fri, 21 Mar 2014 07:12:24 +0000 gitarcarver: You need to read up on the concept of “salaried non-exempt” before you start trying to have this conversation.

To sum up: Most American workers are in a category where they don’t have set hours. There is no “you’ll work x number of hours” agreement for them, at least not in any legally-binding sense. So if they work “x+y hours”, well, that’s just how many hours they work.

By: Labor and wage-hour roundup - Overlawyered Fri, 21 Mar 2014 04:30:09 +0000 […] Smith, Hill] Another reaction to President’s scheme [Don Boudreaux, Cafe Hayek, earlier here and […]

By: Walter Olson Fri, 21 Mar 2014 02:43:55 +0000 I really don’t think it’s that complicated. Again, if the two sides agree on a deal of $400 a week with an agreed-upon work week of 40 hours, and on Friday afternoon at 5 p.m. the employer says “yes, you’ve worked the 40 hours, but you can’t have the $400 unless you come in Saturday and work five more hours,” the employee has a right to say, “Forget it, bub” and collect the full $400, with stringent legal penalties to the bad employer if it doesn’t cough up at once. On the other hand, if the employer says “Here’s this week’s pay in full, but next week you’re going to have to start working Saturdays too and I’m not going to raise your wage,” no one has legally injured anyone. The worker can quit, or can accept the new deal going forward, which re-forms the contract at the new terms.

By: gitarcarver Fri, 21 Mar 2014 02:33:12 +0000 Ron and Mr. Olson,

From your most recent comments, it appears that we all agree that there is something to this “terms of hire” agreement between the employee and the employer.

We all agree that when it comes to stated compensation and benefits the company not living up to the agreement is actionable.

Where the sticking point seems to be is that I believe that when a salaried employee is told “you’ll work x number of hours,” and is forced to work “x + y” hours, I don’t see that as any different than the pay / benefits part of the hiring agreement for an hourly employee.

By making the salaried employee work more than is agreed to, the company is effectively cutting the wages of the employee.

I have understood the point that the employee can always walk out the door in the “symmetrical” relationship as Mr. Olson describes it.

However, unless I am misunderstanding ya’ll, it seems that you are saying that when the hourly employee finds out he is being shortchanged in pay, he not only can walk, but seek legal redress.

Yet the salaried employee, facing the same effective shortchanging of pay can walk out the door but has to suck it up when it comes to the loss he suffered.

I am not trying to be argumentative and (this is directed more toward Ron,) I appreciate the tone of the conversation as you and I have a bit of a history I would like to get past.

The conservative part of me (ideologically speaking) hates the idea that an employer can shake the hand of a new employee and not live up to the agreement if the employee fulfills their end of the bargain. I am having trouble understanding why the agreement on compensation is actionable when it comes to a hourly wage employee but when it comes to a salaried employee, they are treated as if the agreement never existed.

My whole point has been that when it comes to the compensation / hours worked part of any initial agreement between employer and employee, they type of employee should not matter. Whether the employee is hourly or salaried, the agreement still stands.

Finally, and this is where there is a lot of grey, I understand that there are going to be times when a salaried person may be asked to work more than the agreed upon hours. But I have seen and known too many people where the number of hours demanded by companies of salaried people consistently go so far and beyond the agreed work hours that it cannot be anything other than planned and systemic.

I just am having a hard time figuring out why an hourly employee cannot be shortchanged when it comes to compensation / hours yet a salaried person can be shortchanged when it comes to compensation / hours worked.

Once again, thanks for listening and the tone of the conversation.

By: Ron Miller Thu, 20 Mar 2014 19:50:45 +0000 Right. Maybe we are all saying the same thing here. Clearly, you can’t tell someone that you will pay them a certain amount and then pay them a different amount. You are right, your professor scenario would be awful as would be your insurance scenario and both would be actionable.

By: Walter Olson Thu, 20 Mar 2014 18:46:55 +0000 Also, an employer that deceives its workforce into believing that it has paid workers’ comp, unemployment, or health insurance on their behalf, but has actually not done so, is treated quite severely under law and properly so. No libertarians I know of would treat that as other than a serious breach of civil obligation for which there should be strong remedies.