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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5042
Experience:  Extensive experience representing employees and management
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Hello, I am a teacher at an "at-will" public, year-round,

Resolved Question:

Hello,

I am a teacher at an "at-will" public, year-round, independent-study-program (1-on-1) charter high school and feel that I am being taken advantage of with respect to overtime hours. Although I am an exempt employee, the company declared that they would pay overtime (after the 30 regular hours) during summer school when we have to service more than the normal company-stated maximum of 50 students. This has been allowed to continue into the regular school year if one has more than 50 students. My issues with this have been

1. my more-than-50 students went up to 110,
2. my more-than-50 students has averaged 100 for the past 9 months,
3. I am not allowed to report more than 30 x 1.5 = 45 hours per week regardless of the number of students I have (which is 2 times the maximum), which they say has no limit,
4. no teacher is allowed to report the hours as overtime after all -- instead they must be reported as "sub (substitute) hours" even though no one is substituting for any other teacher, and these "sub" hours are paid at 3/4 one's regular rate,
5. I am essentially harassed about reporting any extra hours, and was recently written up for it, claiming poor time management.

Additionally, we are asked if we voluntarily want to work some of our week's vacation days for regular + vacation pay, but if we opt not to, we are pressured to work some of those days anyway. Lastly, all teachers were required to sign a form to "voluntarily" give up their lunch break since we (supposedly) work a 6-hour shift.

I have responded in writing to H.R., contesting the write-up and am now wondering if they plan to dismiss me.

My question is,are any of these policies legal?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer.

I'm very sorry to hear about your situation and hope I can help.

My goal is to provide you with excellent service this evening.

When you state that the company declared that they would pay overtime for more than 30 hours was this declaration made in a letter or was it verbal?

Also, can you tell me if you believe that you are being treated differently (unfairly) relative to other teachers due to discrimination based on a protected characteristic (such as race, gender, national origin, ethnicity, age, etc.)?

Customer: replied 1 year ago.

The overtime declaration was only verbal, from 2 managers to 2 employed teachers.


 


I do not believe I am being treated unfairly based on a protected class. I believe it is because I work more overtime than other teachers, but that has been because I am the only one with anywhere near that many students (and even though my average rate of time per student has always been less than the maximum rate of 30 hours per 50 students).

Expert:  Joseph replied 1 year ago.
Hello Gary,

Unfortunately, while your employer's practices are incredibly inhumane, unethical, and unfair they are not illegal.

As an exempt employee you are not entitled to overtime, and you can essentially be required to work 70 hour work weeks without any additional compensation.

Unless your employer made a verbal or written contract that it would pay employees for hours worked over 30 in a week at a rate of 1.5 the average hourly rate of pay, I'm afraid that you wouldn't have an enforceable contract.

There is nothing illegal about an employer reneging on their promises to employees, as long as they don't make these promises as a contract with employees. So, you wouldn't be able to sue your employer for breach of contract based on their failure to pay you overtime if it was only a declaration they made.

Also, unfortunately, there is nothing illegal about your employer treating you differently for any reason other than discrimination on a protected characteristic. So, while it is very unfair that you have way more students than other teachers and have to work more overtime as a result, that doesn't provide you with any legal basis to sue them.

The pressure to work during vacation is also not illegal. Finally, exempt employees do not receive mandatory meal periods like hourly employees do, so it is not illegal for your employer to not give you a half-an-hour break.

I realize that the above information is not what you wanted to hear, and I sincerely XXXXX XXXXX had better news to give you (as I think all of the policies SHOULD be illegal), but I hope you appreciate honest and direct answer to your questions, as it would be unprofessional of me to provide you with anything less.

Since my goal is to provide you with the best service this evening, please don't hesitate to request any additional information or ask any follow up questions.

If you don't have any, please remember to rate my answer positively so I get credit for my work.

Thanks and best of luck!
Customer: replied 1 year ago.

FYI, I totally appreciate your honesty (even though it's obviously not what I wanted to hear).


 


2 follow-up questions:


 


1. Doesn't the precedent that they set during last summer and afterwards of paying me for hours worked over 30 somewhat override the exempt status?


 


2. If they do decide to dismiss me in the near future (for whatever reason they claim), which most likely would be for reprisal for reporting the practices to H.R., would that constitute any type of wrongful termination?

Expert:  Joseph replied 1 year ago.
1. Yes, actually, this can give rise a complaint based on the theory of promissory estoppel. Since your employer began this system and promised that it would be continued, you were caused to detrimentally rely on this promise, working all those extra hours due to the very large load of students that you have.

You would have been caused to reasonably rely upon your employer's promise to continue to provide compensation at the overtime rate for all hours worked in excess of 30. You have then suffered an economic loss since your employer is only compensating you for a limited number of hours over 30 (15, when you have worked more than that) and only at 3/4 your rate instead of 1.5.

Based on this doctrine, you definitely have a valid claim under promissory estoppel against your employer.

2. Unfortunately, since what you have complained about is a breach of contract (based on promissory estoppel) it is unlikely to constitute a strong wrongful termination case. In order to have a claim for wrongful termination, you would need to have been terminated due to complaining about illegal activity (such as violations of the education code), which is wrongful termination in violation of public policy, or for complaining about discrimination/retaliation due to discrimination based on a protected characteristic.

You would have a case for wrongful termination in violation of public policy for complaining about the breach of contract, but it wouldn't be as strong of a one if you were complaining about an education code violation of some sort or illegal discrimination issues.

However, you definitely would be able to claim and receive unemployment benefits as you (obviously) would have been terminated due to no fault of your own.

Also, since you do have a valid claim under the theory of promissory estoppel, you could add a wrongful termination claim onto that (or better, have your attorney do it for you), even though it is unlikely to be a successful one.
Joseph, Lawyer
Satisfied Customers: 5042
Experience: Extensive experience representing employees and management
Joseph and 2 other California Employment Law Specialists are ready to help you
Expert:  Joseph replied 1 year ago.
Hello Gary,

Thanks again for your positive rating of my answer!

Please contact me at JustAnswer by placing "to Joseph" at the beginning of your question and/or requesting me directly in the California Employment Law Category.

When you receive your Customer Satisfaction Survey from JustAnswer, please rate me highly (9-10) there as well. It benefits my ability to assist you and other JustAnswer customers, and would be greatly appreciated!

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