Employment Lawyers Can Answer Your Employment Law Questions
I am often on call at home for part of the shift. I come into work for 6-8hrs during the day, and then on call for the rest of the 24hrs - and frequently get called back in throughout the evening. I also have frequent phone call consultations while at home.
I work as a physician in an ICU. I cover admissions/transfers/ to the unit and the day to day management care of the patients. I work with nurses, RTs and other specialty consultants.
Here, it is possible for the employer to set your personal workweek commencing and ending at a certain hour. The issue finally devolves into a question of whether or not the employee handbook creates an implied unilateral contract upon which you are entitled to rely.
In Orr v. Westminster Village North, Inc., 689 N.E.2d 712 (Ind. 12/15/1997), the Indiana Supreme Court held: "[A]n employee handbook may constitute a unilateral contract and bind the employer if the following three criteria are met: (1) the language of the employee handbook must contain 'a promise clear enough that an employee would reasonably believe that an offer had been made;' (2) the employee handbook must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer; and (3) the employee must accept the offer by commencing or continuing work after learning of the terms of the employee handbook."
The above-quoted criteria is the key to winning your argument. From what you have described, it seems pretty clear that the handbook states that each employee's workday hours commences at midnight. Absent some other unknown, this would appear to satisfy at least one element of the test, confirmed in Orr.
Unfortunately, in order to prevail on this issue, you would have to sue the employer -- and that means you could be fired in response. In other words, you could win your 32 days pay, and lose your job. So, if that's something which would be untenable to you, then you may have to give up on the additional days of unpaid time.
You could obtain whistleblower protection by filing your claim with the U.S. Department of Labor. However, experience suggests that the DOL isn't much interested in claims by highly-compensated professionals. DOL is more interested in a large number of minimum wage workers being exploited by a national employer. So, while you could file such a complaint, it may end up going nowhere, and you would be back to a decision of whether or not to sue your employer, and thereby risk the loss of your job in retaliation.
Hope this helps.
Thanks for the background explanation, that does help explain a lot. My intent is not to get information to sue the employer.
I am trying to clarify what the contract wording currently implies, to determine what to look for in future negotiations.
The contract states my base salary covers "up to 32 weeks a year." I am not typically working week straight of coverage, it fluctuates throughout the month/year - and can be 12hrs of coverage up to 12 continuous 24hr days. The start of the shift/end of the shift also varies based on staffing availability.
My interpretation of the "additional compensation" portion of the contract - 32 weeks of coverage is 224 calendar days - primarily based on the emp handbook stating that a workday starts at midnight (ie. calendar day). My manager is interpreting the contract as 5376 hours (32 weeks x 24hrs) a year. The wording is "You will be eligible for compensation for extra coverage in excess of 32 weeks" - is there legal interpretation? Due to the varying schedule, there is a significant difference in total days between the two calculations.
A workweek for a salary-exempt employee is based upon days worked (workweek), not upon hours. Treating a salary basis employee to hourly considerations makes the employee a nonexempt hourly employee who is entitled to overtime pay for every workweek retroactive two years. See 29 C.F.R. 541.602 and 541.603. Hope this helps.
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