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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 32318
Experience:  Began practicing law in 1992
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I live in Oklahoma and have a regular 8-5 job.I work for flat

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I live in Oklahoma and have a regular 8-5 job.I work for flat rate pay with the hours paid determined by an online database.The database gives a certain task an hourly pay rate.As an example a fender needs painted,the database allows 2 hours to paint the fender.When I get the vehicle and I paint the fender I get paid 2 hours of labor at $13.50 per hour or $27 total pay for the job.This sometimes works out good for me and sometimes bad for me.If the fender takes me 4 hours to complete I still only get paid 2 hours(###!!!),however if I complete the task in 1.5 hours I get paid 2 hours which is great(yeehaww).Again these database labor times are determined through extensive time studies and are industry standard for my occupation.The problem I am having is that my current employer is not willing to compensate me for some of the work I am completing.Lets say I am working on the example vehicle fender discussed before.As a very extreme example I will be given a car that needs two fenders painted,then after I have painted both fenders I am only paid for one fender or 2 hours of labor.And when I bring this underpayment to my employers attention,they say that if I were to be paid for all the work I do I'd make too much money .I have no contract with my employer,only the understanding that I am paid flat rate per job according to the database.If my employer is not willing to get me paid for all the work I do on flat rate even when I bring this to their attention what are my options?

Dwayne B. :

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

Dwayne B. :

I need you to be a little more specific in your question(s) if you could. When we answer general ones like "what are my options" we have to give general answers and, invariably, the customer responds with "I already knew that". This type of forum works better if you ask specific questions so we know exactly what you are looking for.

Customer:

Thanks Dwayne,I will try to be more specific in the future.My question is are there any labor laws being broken in this example?

Dwayne B. :

He is required to pay you for the work you do. While this isn't as obvious as if you were working four hours and he was only paying you for two it is essentially the same thing.

Dwayne B. :

Is he getting paid for both fenders (in your example)?

Customer:

In some cases yes he is being paid.One example is overspray protection or covering the car with plastic,the other is buffing time.In both cases money is collected on the estimate but no hours are given.I don't get paid unless hours are given for paint time.These operations are however billable for paint labor according to the database.I spoke to my employer about this and I was told that is the way they have to bill it,but that still leaves me doing a billable job for free and the shop IS collecting the money which I think is wrong.There are several other billable operations that I have requested to be compensated for,but no money is collected on the estimate.However when I request that these operations be billed for in the future,they don't do it and that still leaves me doing part of a job for free even though the database allows time for these operations.

Dwayne B. :

It is not the usual kind of case but I still think you can file a complaint through the Department of Labor for a violation of the Fair Labor Standards Act and failing to pay for hours worked.

Dwayne B. :

It might be a different issue if they weren't being paid but if they are being paid then you should be paid as well.

Dwayne B. :

While you can get a lawyer and sue you are better off going directly to the Department of Labor and filing the complaint. They won't charge you anything to collect.

Customer:

I appreciate your willingness to try to help,but because of your admission that this is an unusual case and use the word "might" be a different issue if they weren't collecting the money I have to feel as if I have not given you a clear enough idea of the abuse that is taking place so I will give another hopefully better example of what I go though on a daily basis.Lets take the fender example again.This time the fender pays 2 hours to paint,this time is based upon a new undamaged panel according to the database.However when I get the fender it has bondo all over it.Now I have to prime and block this panel which can turn the two hour job into a four hour job.The labor operation of prime and block is a billable operation according to the database,but when I ask for this to be billed in the future nothing is done.To be very clear the 2 hour paint time is based upon a new undamaged panel,any additional work required is to be billed accordingly per the database.I must apologize,I realize that because of the nature of my pay this is hard to understand but I am being as clear as possible.I really need a clear answer as to if any labor laws are being broken.

Dwayne B. :

I'm familiar with the way you're paid, I've represented a number of people who do body work and mechanics work. In cases where there is extra work to do and they aren't paid for it there is probably nothing that can be done, at least right now. It is possible that you could sue and the court would say that what they are doing violates the FLSA but it isn't for sure and no court has rules on it yet. However, when they are paid for a job and are just not paying you for all you do that is a different matter. That certainly is a violation.

Customer:

I know that flat rate time is not the only issue here,because that could be looked at as a custom contract agreement between the employer and employee.What I am concerned about is that when I bring problems about how things are billed to their attention,my concerns are not adressed and no explanation is given.Is this not an ethical violation?

Dwayne B. :

Ethics is situational. While to an employee it may be unethical to an employer it may not be. In addition, ethical violations are not actionable.

Customer:

In the situations you have handled in the past,were specific included and not included items for the specific operation documented and presented?The included and not included items for each labor operation in my line of work is very specific and it is all documented on the database.Does knowing what specifically is and is not included make any difference as to if it is lawful for my employer to refuse to pay me?

Dwayne B. :

Yes, it was and would. We never actually had to take it to the DOL, I called them on it and they paid up. In the case I am thinking of it was a mechanic but they were doing essentially the same thing to him, charging for some things and only paying him the minimum they thought they could get away with.

Dwayne B. :

I think the key would have been whether the employer was getting paid for it.

Customer:

What i'm getting at is if my employer decides he is going to have me paint a car complete,but is only willing to charge for painting the fender.That is taking things to an extreme,but I know how dishonest people will do things if they are allowed to.Give them an inch and they take a mile.

Customer:

Sorry I got ahead of you there Dwayne.

Dwayne B. :

I think in a situation like that it is akin to making someone work off the clock.

Dwayne B. :

No real difference.

Dwayne B. :

And no problem.

Dwayne B. :

It is like they tell you that you have an hour to sweep the floor, but if it takes two hours you have to clock out for the last hour. It's the same principles involved.

Dwayne B. :

It's making you work for free.

Dwayne B. :

The concept of you being paid two hours to paint a fender and it may take more or less is okay. However, they can't pay you to paint the fender and then have you paint the car.

Customer:

Hold up a minute there Dwayne.I'm not just talking about my ability to beat flat rate.Whether I can do that 2 hour fender in more or less time is just my ability to beat flat rate or have it beat me.That aint what I'm getting at.That's always gonna happen.What I am talking about happens before any work is even performed.I tell them before I even start on the job that the estimate is incomplete and some billable labor lines have been overlooked and not charged for and they refuse to write the estimate in an upright way.That is different than me trying to beat flat rate.

Dwayne B. :

I agree with your statement and that is what I was saying. To put it a different way they can't pay you to paint a fender and then have you rebuild an engine.

Customer:

By me telling them before I start on the work and they choose not to correct the estimate that is just like them paying for the fender and getting the whole car painted for free.

Dwayne B. :

Do you have the right to refuse a job there? For example, if they brought it to you and you said it wasn't enough because more work was needed?

Dwayne B. :

Correct.

Customer:

I work in an environment of intimidation and fear.If I refuse to do a job they will just show me the door.All of my coworkers are afraid to band together with me to change things because they are scared.

Dwayne B. :

And that is going to be part of the problem with reporting this to the DOL. I think you'll win but your time with that shop will be affected.

Customer:

I was really hoping that there may some clear cut legal avenue to remedy the situatuin.

Dwayne B. :

There is. You report them to the DOL and have them audit their books for the failure to pay correctly.

Dwayne B. :

You can then recover any underpayments for the last couple of years.

Dwayne B. :

Technically they can't retaliate against you for doing that but you know they'll start trying to find a reason to fire you.

Customer:

I am an employee that shows up early and stays late.My numbers are better than anyone I have ever worked with.It would be their loss.I just don't understand why some people are so hard to get to treat you fairly.

Dwayne B. :

I don't understand it either. Many employers don't seem to understand that the better you treat your employees the harder they work for you.

Customer:

So what should I do in the future?Document disputes and underpayments.I have not documented anything thus far.

Dwayne B. :

Yes, document everything and start making your case. When you get ready to move forward then you will be set.

Dwayne B. :

Put as much in writing as you can.

Customer:

What should I do when I get the expected response from my employer,that I have to "take the good with the bad".Will their defense hold up with the department of labor?

Dwayne B. :

No. That isn't a valid defense.

Customer:

Thanks Dwayne.I will keep this exchange and look at it when I feel like giving up.I appreciate your patience and wisdom.

Dwayne B. :

You're very welcome it was a pleasure discussing this with you. I'll exit now to assist others.

Dwayne B. :

Best wishes to you on this and please don't forget to leave a Positive Rating (of course I’d suggest Excellent!) so I get credit for my work.

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