Dear lynn,
Thank you for your question and I look forward to assisting you. Please keep in mind that I can only respond to your post and the information contained in it, as I do not know what you know unless you describe it fully. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if I ask a redundant question.
That being said, in order to better assist you, could you please clarify for me:
1. Did your husband have a written employment contract with the employer?
I look foward to assisting you.
Sincerely,
Stephanie O. Joy, JA Legal Expert
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There was no written contract.
Hi Lynn,
Yes, morally reprehensible, but without a written contract to the contrary, here is where we are at.
Originally the agreement was:
7.5 hours/day X 6 days = 45 hours/week
$600/week, gross, before taxes.
= $13.33/hour
Minimum wage is now $7.25/hour in AZ.
They must pay him for all hours worked. So those unpaid hours he has a right to under that original agreement AND he can file a wage claim with the DOL. Here is the link.
The employer CAN change the offer of employment, since it is "at will" and not otherwise contracted for differently or for a certain length of time.
However, the new demand on him of working an additional 7 hours/day * 6 days in an additional 42 hours/week making the total at a ridiculous 87 hours/week (this is hard for any job/profession, but having been in the restaurant industry for many years myself a while back, I know how physically (and mentally) challenging 1 or 2 doubles can be, not to mention 6 straight, week after week. It is means he would only be hearing $6.90/hour, gross, which is less than minimum wage. ("The minimum wage shall be
paid for all hours worked, regardless of the frequency of payment and regardless of
whether the wage is paid on an hourly, salaried, commissioned, piece rate, or any other
basis." CITE.)
The employee can file an administrative complaint with the Labor Department of the Industrial Commission of Arizona or file a civil lawsuit. An administrative complaint must be filed within one year from the date the wages were due. The civil action must
be filed no later than two years after a violation last occurs, or three years in the case of a willful violation. The civil action may include all violations that occurred as part of a
continuing course of employer conduct regardless of the date of the violation.
The Arizona Minimum Wage Act prohibits an employer from retaliating against an
employee or other person for asserting any right under the Arizona Minimum Wage Act.
Additionally, if an employer takes adverse action against an employee within 90 days of
the employee asserting a right under the Act, the presumption is that the employer
retaliated against the employee. This presumption can only be overcome if the employer
shows by clear and convincing evidence that the action taken against the employee was
for a permissible reason.
An employer who fails to pay the minimum wage is required to the pay the employee the
wages owed with interest and an additional amount equal to twice the underpaid wages.
An employer who retaliates against an employee is required to pay penalties sufficient to
compensate the employee and deter future violations, but not less than $150 for each day that the violation continued or until legal judgment is final. The Commission and courts also have the authority to order other appropriate legal or equitable relief for violations of the Act. Now, the above is all requried by the state of Arizona. But the federal law appears to control overtime requirements in AZ, a whole 'nother ball game here:
"Covered nonexempt employees must receive overtime pay for hours worked over 40 per workweek (any fixed and regularly recurring period of 168 hours - seven consecutive 24-hour periods) at a rate not less than one and one-half times the regular rate of pay. There is no limit on the number of hours employees 16 years or older may work in any workweek. The FLSA does not require overtime pay for work on weekends, holidays, or regular days of rest, unless overtime is worked on such days." http://www.dol.gov/esa/whd/flsa/
Thus, for all the time that your hardworking husband worked 45 hours, 5 of them each week should have been paid at time and 1/2. Moreover, those additional unpaid shifts, if they made his work week greater than 40 hours, should also have bene paid at time + 1/2. Apparently there is no max. # of hours one is restricted to, so while they can demand 87 hours/ week, they have to pay at least min. wage (prospectively, they can't reduce the pay retroactively and all overtime must be time and 1/2.
I would slap this employer so quickly with a wage claim with the US DOL and the AZ agency, including a retaliation claim. It might teach the employer to stop stealing his labor and disrespecting human beings that work hard for him. I would aslo consider a lawsuit, but defintiely read up on EVERYTHING to make sure which is better for you.
He should also file for Unemployement Insurance ASAP.
Good luck here Lynn!
Hope this helps to clarify.
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Stephanie Joy
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