Help With FSLA Law

So an idiot District Manager decided to send us all (managers) an email DEMANDING that all of us be up and ready for work during scheduled days off.
This is because there is high turnover in my business and a no call no show at least once a week.
Having been an HR representative for Hilton Corp. (2 years ago), I immediately send a copy to HR and told them that according to FSLA laws and NYS Dept. of Labor guidelines, a demand to be working on scheduled time off puts all manager into the ‘non-exempt’ category and therefore...we must be paid for that ‘on call’ time as we can’t use that time for our own purposes effectively.
I went on to say this is easily corrected by putting out a statement that retracts the demand and replaces it with ‘softer’ language that can skirt the law and save the company from massive fines.

I heard nothing and started digging a bit. Tucked away in the Google Drive was the MANAGER HANDBOOK. Never knew it was there but inside I found the following:

(I can’t upload the pic as there’s some restriction on the file or something idk. The handbook states the same DEMAND that managers MUST be up and dressed for work on scheduled days off in case they have a no show. It then explains exactly what to do, who to email/call/text in the event your employee is late opening. The times specified in the handbook go from 8:45AM to 9:01AM.)


This is even worse than the email. As I understand current FSLA law, the statements made in the handbook mean that if we cannot use our scheduled time off for personal use or are hindered making plans during that time by the demands made by our company...then that time is paid.

Can anyone clue me in as to if I’m missing something here?? I don’t feel I’m reading the law wrong but I’m open to that possibility.

Thanks for any guidance!!

a reply to: MrBuddy

What did you find on labor guidelines regarding scheduling? this is what I found:
www.labor.ny.gov...

Employee Scheduling Regulations
Following a series of public hearings in late 2017, the Department of Labor issued proposed regulations to address what is commonly identified as "just-in-time," "call-in" or "on-call" scheduling.

Based on extensive feedback in the subsequent comment period, it was clear the Department's initial intent to support workers while being fair to businesses was viewed as a one-size-fits-all approach that was not appropriate for every industry.Comments on the revised rules, issued in late 2018, indicated that significant issues remained, and the revisions did not achieve the balance of certainty and flexibility for either workers or businesses.

At this time, due to the constraints of the regulatory process, the best course of action is to let this process expire and re-evaluate in the future, likely in concert with the Legislature, which would have a broader authority and better legal standing than Department of Labor regulations alone to balance the various needs of workers, businesses and industries.

I'd talk to a lawyer and wouldn't rely on some random person on ATS. I'd hate to see someone take unverified advice and lose their job.

a reply to: MrBuddy

It's a bit ambiguous... And, probably designed that way.

This is a pretty good overview.

Basically, whatever your "on-call" duties require of you determines if it should be paid. The article correctly states that if, for example, you're an IT guy and get so many calls while on-call that you miss your kid's game, then you should be paid. If they just need you to be available to answer the phone or not get drunk in case you have to come in or whatever then, no pay.

However, it sounds like they are asking you to come in for no-call/no-shows. If that happens and you are exempt, you should get comp time for that. Any company with half a brain will do this.

In my case, I am exempt and oftentimes need to come in for a few minutes to handle an issue, spend maybe an hour on the phone with a site or come in to respond to some emergency. All I do is take the same amount of time off whenever I feel like it in the same pay period. I've never been called on it except once when a new VP took over the region and was flexing her new power. She learned very quickly that without our support in her region, she'd have a very tough time of it. She relaxed a bit but was let go about a year later. Not a good fit.

If you really want to be paid OT (you probably will regret that decision), you may qualify in NY depending on how much you make. Under a certain amount and you need to be paid OT. In my experience, however, they'll probably move to make you non-exempt in that case but keep your pay the same. If that happens, say goodbye to your long lunches and the other "perks" of being salaried and hello to clocking in and out...

Your employer SHOULD also respect vacation time or other PTO time and NOT require you to be on call during those times.

If I were you, I'd suggest to your boss or whoever sent the email, to rotate an on-call list. Have only a minimum number of managers be on-call on any day. Then everyone shares the pain and you know when you WON'T be getting calls or required to come in if some idiot gets drunk and no-shows.

originally posted by: Middleoftheroad
I'd talk to a lawyer and wouldn't rely on some random person on ATS. I'd hate to see someone take unverified advice and lose their job.

A little while back I asked for some advice on ATS. The advice given was spot on (seriously spot on, thanks y'all!) , and helped me greatly with a real world problem. I did not have to go through the legal route although that was always an option.

It says in the OP he/she wanted to clarify what they were reading. There is never harm to have extra eyes look at things for you. There might be people on here that have gone through the exact same thing and can give advice.

An exempt employee is not immune from being required to work, "days off" or not. Your "days off" are not a "right;" they are granted. In fact, "Exempt" means you are not required to be paid overtime for hours in excess of 40 per week. They are by definition "salaried" employees as opposed to "hourly," i.e. "non-exempt" employees. Being required to work on "days off" falls right in the middle of this. I worked in HR myself for a time and have been to more employment law seminars than I care to remember. From what little I know about FLSA I do not think you have a case. I think you have the issue here completely backwards. Being exempt means you do not have the protection of overtime in excess of 40 hours a week like a non-exempt employee has. You can work (or "be worked") for as many hours as the employer requires.

I would think any professional and competent HR representative would be in a position to know or have the resource base to find out. I wonder why you have not contacted an HR forum or organization instead of ATS. I would also be very careful distributing that Managers' Handbook as it is likely considered proprietary information. It doesn't sound like you obtained it in a legitimate way. That may open you up to sanctions from the company.

originally posted by: schuyler
... I would also be very careful distributing that Managers' Handbook as it is likely considered proprietary information. It doesn't sound like you obtained it in a legitimate way. That may open you up to sanctions from the company.

Thanks!

I meant to mention that as well.

It's a good thing you couldn't post it. Don't. Unauthorized sharing of proprietary information was the cause of the last three employees I fired. Videos in their cases, but same same.

a reply to: MrBuddy

Simple do not answer the telephone on your time off , Use the answering machine that comes built in

a reply to: schuyler

I think you have the issue here completely backwards. Being exempt means you do not have the protection of overtime in excess of 40 hours a week like a non-exempt employee has. You can work (or "be worked") for as many hours as the employer requires.

I think what you are saying is true for most places.
NY laws may be different, even down to the county. That's why I linked that paragraph above. Sounds like they changed something regarding scheduled time off, and are now reconsidering because it is hurting employers. So he may be correct.

a reply to: JAGStorm

I never said to delete the thread, just saying that taking legal advice on a random website isn't the safest way to pursue things. Glad to hear everything worked out for you.

a reply to: 35Foxtrot


I think you’re mistaking exempt and non exempt employees.

As I understand FSLA and exempt employee is one that at the very least MUST be paid via a salary. All other hourly employees are not exempt and therefore fall under the guidelines of FSLA.

The difference of whether non exempt employees get paid for on call time or not is determined by asking if the employee can make effective use of their scheduled time off.

I’m thinking that if I have to be up and ready to work on those days I can never travel, never be hung over, etc.

The handbook actually says that if you are not up and in contact with corporate by 8:45AM on days off, you will be terminated. Exact quote there.

a reply to: schuyler

Like the other poster, I cannot BE exempt because I am an hourly employee. This automatically means I fall into the non exempt category and on call time has to be paid....or that’s what I’m attempting to find out here.

But there isn’t a mistake....if you aren’t salaried, or in the hospitality industry...you are classified as falling under FSLA guidelines........right lol??

a reply to: 35Foxtrot

I have access to the drive so I have the right to look at my own handbook as a manager. However, I see where you’re coming from. I also feel that in order to keep this company from taking advantage of more naive employees, this has to be hashed out.

a reply to: Middleoftheroad

I’m not really asking for legal advice here. The Department of Labor handles those types of complaints free of charge. My concern is merely looking like an idiot myself if I bring this info and other records to the DoL and get laughed out of there because I missed some glaring inconsistency.

originally posted by: MrBuddy
a reply to: schuyler

Like the other poster, I cannot BE exempt because I am an hourly employee. This automatically means I fall into the non exempt category and on call time has to be paid....or that’s what I’m attempting to find out here.

1. That is correct. Hourly = non-exempt. But you did not say that originally. Indeed, you referred to yourself as a "manager," which is normally an exempt position. They real key here is "40 hours a week." That can mean 12 hour days. And if they are paying you overtime at 1.5X, they are covered. Better explanations will get you better answers.

2. Don't be naive yourself in claiming your "rights." You have "rights" given by the US Constitution, and "rights" granted by laws passed, but a lot of time claiming your "rights" just betrays a pugnacious attitude, which is pervasive throughout your posts. You do not have the "right" to post your employee handbook, just as one example. If I were your District Manager and found out you called me an "idiot" in public in writing, I'd find a way to get rid of you. In most states employment is "at will." My son was fired from his banking job because too many girl friends were bothering him at work. The reason? "For cause." That's all they had to say.

3. In the absence of an employment contract, either collective or personal, that employee handbook IS your contract. Companies get in trouble all the time for "not following their own rules." If you can prove the company is violating its own employee handbook, you've got something actionable.

originally posted by: MrBuddy
a reply to: 35Foxtrot




I’m thinking that if I have to be up and ready to work on those days I can never travel, never be hung over, etc.

The handbook actually says that if you are not up and in contact with corporate by 8:45AM on days off, you will be terminated. Exact quote there.

Maybe rethink your job if things are that bad, and they have a high turn over of staff might be another clue , My free time is precious to me , i would think they would have a team that was on call for a specific time period allowing others to let their hair down when needed as you are not robots .

That is how it worked in construction and maintenance anyway , if you were on call you did not get out of your face but you were paid for it

originally posted by: MrBuddy
a reply to: 35Foxtrot


I think you’re mistaking exempt and non exempt employees.

As I understand FSLA and exempt employee is one that at the very least MUST be paid via a salary. All other hourly employees are not exempt and therefore fall under the guidelines of FSLA.

The difference of whether non exempt employees get paid for on call time or not is determined by asking if the employee can make effective use of their scheduled time off.

I’m thinking that if I have to be up and ready to work on those days I can never travel, never be hung over, etc.

The handbook actually says that if you are not up and in contact with corporate by 8:45AM on days off, you will be terminated. Exact quote there.

I am not mistaking anything. My description of exempt and non-exempt rules is accurate.

You choose what you are and apply the rule (as vague as they are in some cases).

You state:

according to FSLA laws and NYS Dept. of Labor guidelines, a demand to be working on scheduled time off puts all manager into the ‘non-exempt’ category and therefore...we must be paid for that ‘on call’ time as we can’t use that time for our own purposes effectively.

As such, any thinking person would read that as you are exempt but somehow think that a request that you be on-call makes you non-exempt. That's the way I read it.

You are wrong.

I tried to offer a helpful suggestion that you ask your boss to create a rotating on-call list to make things more fair.

You chose to be argumentative. I'm kinda starting to understand why you may be having problems with your boss... It probably has nothing to do with on-call lists.

originally posted by: MrBuddy
a reply to: 35Foxtrot

I have access to the drive so I have the right to look at my own handbook as a manager. However, I see where you’re coming from. I also feel that in order to keep this company from taking advantage of more naive employees, this has to be hashed out.

You do not have the right to share proprietary information. If you don't believe me, do it and show your boss.

Workplace relations can be a tricky one in finding a healthy work/life balance. Larger organizations generally do better with more resources and infrastructure available. There are lots of exceptions with some managers doing better than others.

Generally, if you are getting paid an annual salary then you can be asked to work as much as is required. It is no good to anyone getting burnt out, but if things are busy or other things happen you are a phone call away.

If you are on an hourly wage then you get paid for the time you are there. If the company is to lean on you harder than usual then there is overtime and other penalty rates to help.

I can understand the frustration in being asked to be consistently on call. It does interfere with the rest of life in being able to organize and plan other things. There is also the constant stress and uncertainty of am I going to work today?

The idea of having an on call register and getting at least something extra for committing to being available if required is a good idea and one worth pushing. These negotiations can be tricky with lots of politics and resources involved. Some companies will be able to manage them better than others. Looking for a sustainable solution where everyone wins is a good aim.