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Legalease
Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 16367
Experience:  13 years experience in employment law, unions, contracts, workers comp law
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As a social worker at a mental hospital my work hours are

Customer Question

As a social worker at a mental hospital my work hours are Sun to Thur from 8am to 4;30pm, and because there is not enough social workers, I work an average of 1 to 2 hours beyond my work day, every day, without compensation. They say I am part of management, and in a 90 day probation period, and not entitled to overtime or bonus. In the 2-months I have been there, I have put in about 60 extra hours without compensation. Is this an unfair labor practice?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Legalease replied 1 year ago.

Hello there --

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Are they paying you a specific hourly wage or are they paying you a weekly or monthly salary amount?

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MARY

Customer: replied 1 year ago.
A specific hourly wage.
Expert:  Legalease replied 1 year ago.

Hello again --

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Because you are a social worker in a professional position (they call it management), the hospital could try to claim that you are exempt from the wage and overtime laws and that they are paying you a salary to cover everything you do. However, because they are paying you a specific hourly wage that is a HUGE hole in this argument for them and there are a couple of ways that you can approach this matter.

First, because you are on a probationary period, you may want to keep the matter to yourself at this point and keep careful track of the additional hours -- you may want to start a written journal and put down the date and time of the extra hours, how long they were and WHY you needed to remain there for extra time (a specific patient, a specific case, etc). Then once they keep you on permanently, you should talk to human resources or personnel about this issue and see if you can negotiate a higher pay rate to compensate for the hours (even if they refuse to recognize every single hour that you work and pay you overtime for it).

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The other way you can handle the matter is to file a wage and hour complaint with the Dept of Labor regarding the fact that they are or were paying you at a specific hourly rate and you were not being compensated for all of your hours. If you do this, you will most likely be marked for termination and so you should think carefully before proceeding in this manner. Unfortunately, almost all employees are considered employees "at will" and a person can be terminated from employment for any reason or for no reason at all. So if you make such a complaint to the Labor Dept while you are still employed by them, they will leave you alone for a while and then start coming up with reasons to give you poor reviews and in a year or so later you will be out of a job (although they could terminate you for any reason, once you make such a complaint to the state or federal government, the employers are smart enough to put together a record of trumped up poor performance and warnings to cover themselves and while it is unjust, it is very hard to disprove what they come up with against you once they terminate you).

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So, my suggestion is that you be careful with this and keep it to yourself while in the probationary period. If you are let go at the end of the period or even within the next year or so, you will have your journal and records of the hours that you have worked and you can still pursue a claim for all of it with the Dept of Labor for up to a year after you leave their employment. Keep in mind that if this job has always been a "management" position and other social workers were being treated the same, then even with a documented hourly wage, the Labor Dept may still determine that the employer was exempt from the overtime laws with regards ***** ***** social worker position. While there are no laws or guidelines against the employer using the hourly wage as a payment indicator for any position, you can still make a case that your job was sufficiently nonmanagement that you should have been paid hourly and overtime for hours work in addition to the regular 40 hours a week.

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I hope that helps. Please let me know if you have further questions. If not, can you please press a positive rating above so I will be paid for my time today. I am paid nothing unless you press a positive rating before leaving the website. THANK YOU VERY MUCH !!

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mary

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