Tuesday, July 11, 2006

Overtime Push-back

Moving on from monkeys on bikes, I have an upbeat tale about an artist who brought up non-payment of overtime with supervisors and got...better treatment.... A few months ago I met with a design artist who was reasonably well-paid by her studio and "on call." ("On call" is a contract designation that a qualified employee and studio can negotiate -- the employee gets a higher weekly wage but receives no overtime payments for work beyond eight hours Monday through Friday. Saturdays and Sundays, however, the employee receives "time and a half.") It turned out that the employee was working Saturdays and Sundays but not getting (drum roll)... any overtime payments. I pointed out to her that she was entitled to time and a half for the weekend work (in the contract, it's actually "sixth or seventh workday;" this usually means Saturday or Sunday.) She sighed heavily and said, "Yeah, I know. I should get it. They should pay me. But I don't want to, you know, rock the boat." I nodded sympathetically. Not wanting to "rock the boat" is a phrase I hear a lot. Who wants to put a decent paycheck in jeopardy by insisting that a studio actually follow the labor contract it negotiated and signed with a labor organization? So the way it is, many artists hunker down and work the free overtime. And no small, water-going craft get joggled. But I told the design artist I was willing to make an issue of it if she wanted me to. She said she would think about it. I heard nothing more until last week, when I was toddling through a studio on my usual rounds and she passed me in the hall. I asked her, "so what happened with that overtime thing?" She smiled. "Oh that. I kind of like, gently brought it up with my supervisor? And he said, 'we'll see what we can do,' and they rearranged the schedule a little, and I'm not working Saturdays and Sundays anymore." So there it is, overtime fans. An employee DID bring up the issue of non-payment of overtime, got a course correction from the studio, and lived to tell the tale. (The caveat: She wasn't, as far as I know, brave enough to demand retro overtime payments for the weekends she did work. I certainly never filed a grievance about it.)


Anonymous said...

So... did they simply cram her weekend hours into her weekdays? Victory!!! :-)

Kevin Koch said...

I don't see how you can't consider it a victory to no longer have to work free weekends. I don't know about you, but I consider weekends pretty important, and if I'm going to give mine up I want to be paid accordingly.

Steve Hulett said...

Anonymous: The weekend hours went away because the schedule was lengthened.

It took some mild saber rattling to get that to happen.

Anonymous said...

To Kevin's question:

If the weekend hours for which she wasn't being paid were simply shifted into weeknight hours for which she wasn't being paid, then that would not qualify as a victory for me.

If, however, her weekend work requirement was eliminated with no additional burden to her work week, then that would indeed qualify as a victory of sorts.

Kevin Koch said...

As Steve said, in this case it was a victory no matter how you want to slice it.

Now, it's possible that the hours could have just been shifted to M-F and it would still be a victory. Here's how: In this example the employee was "on-call." That means the employee had agreeed to higher pay and a guaranteed 56 hours a week of benefit contributions, in exchange for not being able to claim overtime for work done M-F. So if this employee was being required to work, say, 40 hours a week, then 8 hours on Sat. and another 8 hours on Sunday, their contract would be violated. They would be getting screwed, because that wasn't what they agreed to. If the producer then adjusted the schedule to 56 hours M-F, and the employee had their weekends free, then the employer would be sticking to the agreed arrangement, and the employee would now have their weekends to enjoy. That's clearly not as good as the actual case, but it's still an improvement over the contract violation that was going on before.

Anonymous said...

This discussion always, always confuses the hell out of me. I'm reading it and I'm still confused.
I was in a situation where I was asked to work straight through, a 7-day week, with the "days off" being at the end of a 11 day straight run, when the supervisors thought they'd be out of work for me to do, any "re-arrangement" of my time that best suited them. The catch was that I'd get no OT for the Sat-Sun days worked as they were going to give me days off, just when they said so. It all sounded weird & confusing to me, so I contacted the union to ask if the 7th day worked didn't have to be 'golden time" or whatever. I was told that no, it wasn't bending any rules NOT to get OT even if working weekends if I was "on-call" which I guess I was(salaried contract for 50 hours). This didn't seem right to me then and doesn't now--was what I was told right?. I actually DID work the 11 days, but never again agreed to this weird arrangment as all it takes is 11 days straight(this was not a crunch time, btw)to begin to get a little burnt out and feel that this was all leading down a very unpleasant road of never knowing when I'd get a day off. Our country went to Saturdays and Sundays off for a reason: people really, really NEED to recharge their batteries. And the creative re-shuffling of employee's days to suit whims of management deadlines is a horrible template for managing people if you want morale to stay good. I think this entire topic should be covered in a Union brochure, all of it clearly laid out in writing, so that there's no two ways about what's what, and we can all be clear on it. Good idea?

Kevin Koch said...

It sounds like you were given bad information. I'm hoping, to the credit of the union staff, that perhaps your question was unclear, resulting in the misinformation. Or maybe someone spoke out of turn. If this was fairly recent, talk to Steve Hulett to see if you might still be able to get the money you're owed.

We tried to clarify this area (which IS confusing) in our publication, The CBA from A to Z (available here if you've misplaced your copy).

Steve will likely post later today when he's back in the office and clarify, but let me take a crack at it. You're entitled to overtime pay for the 6th and 7th days worked. Where some confusion comes in is that the 6th and 7th day don't have to be Saturday and Sunday (depending upon your work week), but you can't work 11 straight days and not get overtime for two of them.

If you're on a regular contract (which is usually the case, even if you have a contract for prepaid overtime, making it a 50-hour work week), the 6th day worked gets you time and a half, and the 7th earns golden time (double time). You CAN have a contract for prepaid overtime and NOT be "on-call."

To be "on-call" you must qualify as an "exempt" employee AND you must explicitly agree to that arrangement. Nobody should be on-call and not know it. If you ARE on-call, you will earn 56 hours of benefits each week, your pay will be at least 10% above scale, and you won't get paid OT for work beyond 8 hours during the first 5 work days (usually M-F). However, if you work on the 6th and/or 7th day, you ARE entitled to time and a half (no golden time) for those two days.

So it's confusing, but in either case you should have had a couple of overtime days in that 11 day stretch.

By the way, the creative reshuffling you refer to is commonly known as "comp time" in many industries. Comp time is not legal under our contract.

Steve Hulett said...

I contacted the union to ask if the 7th day worked didn't have to be 'golden time" or whatever. I was told that no, it wasn't bending any rules NOT to get OT even if working weekends if I was "on-call" which I guess I was(salaried contract for 50 hours).

I don't know who you talked to or when, but there is no "golden time" for on-call employees. There is only time and a half (which ain't "golden" as we define it. That refers to DOUBLE time.) Here are the basics.

If you are "on call," (and you have to a) be eligible and b) agree to be on call), then the studio can require you to work extra hours Monday through Friday without additional compensation (i.e. overtime)

If you work a 6th or 7th workday (generally Saturday or Sunday), the contract states that you will be compensated at time and a half times one fifth of your "weekly minimum rate."

What this means is, you should get 1.5 times your minimum rate times eight hours, since eight hours is "1/5 of the weekly rate."

But there's another wrinkle. State law (per our lawyer) requires that this overtime be paid at the employee's REAL rate of pay. Which means that you should be paid 1.5 times your actual rate times eight hours. (And let's be clear on what that means. It means if you come in for say, 45 minutes, you SHOULD -- under our contract and state law -- be paid eight hours at your actual rate.)

Now. What happens in the REAL world? What happens is that employers -- when they pay the time and a half to on-call employees -- mostly pay time and a half times the hours actually worked at the employee's real rate of pay.

During my tenure, we've never filed a grievance on violation of the contractual formula because no member has ever wanted us to, even after I've explained the whole scenario to them.

Kevin Koch said...

Looking back, I think union joe may have gotten bad info because the question was specifically about "golden time" and being "on-call." Maybe we'll do a little article about the definition of those two terms in the Peg Board.

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