Bait and switch tactics in employment

[Brianna_Z]

Jurisdiction

Florida

I have a multi-pronged issue starting with wage theft and thru this I've discovered I was previously given a bait and switch promotion, which they are trying to take away from me now.

After 6-years of employment my new Director decided he wanted to reign in my Overtime. He tells me he wants to get me a timesheet code I can enter to move some hours he doesn't want in his budget to another department. Ends up he pulls a fast one and divided my duties into exempt and none exempt duties and forces me to become an independent contractor for everything in my schedule beyond 31 hours.[/URL] I research this and learn I can't be both under the same employer. I complain my OT consideration has been taken away and those hours no longer count to my YTD hours worked. I work under this dual employment status a few times just to get it recorded in my pay-stubs. Then I report the issue to my Supervisor "in writing" and turn in my Director for to HR.

That didn't go so well; I found myself demoted and had to defend myself to HR for receiving what they called unauthorized hours and benefits. The irony, I found myself accused of. How can they do this, they make up the schedules, they decide my assignments, plus I have record of all my approved timesheet's?

So this eats up months of time defending who approved what and to this very day, the people involved are deflecting responsibility. HR won't share the true details of who approved what and I'm left holding the bag and they tell me the the actions my Director took against me are final.

So I phone our Payroll department because I'm having difficulty collecting my PTO benefits that my HR representative wouldn't help me with and I get a slew of information from them. I then forward that to my Supervisor who in turn forwards this to HR. I'm allowed to take my vacation and while away I begin to piece together my employment status and it's not what I thought and I learn I was deceived.

I was hired as a Part-time employee, and we had strict rules about surpassing 1560-hours. One year I exceeded this threshold by 30-hours and got read the riot act and threatened with a layoff if this ever happened again. So I began tracking my hours manually since my Manager didn't seem to have the aptitude to keep up with things and I started doing my own monthly 52-week look-backs. If we appeared to be getting close, I'd take more hours at a second job I was working and I'd even out the load between both Jobs.

At that time I also started looking for another job because I needed health benefits and my spouse wanted to retire, and I was on that benefits plan.

Then in 2015, a special project came up, and my Manager worked me far too many hours. I let it ride because by now, 3-years later, I had a job prospect lined up and was waiting for confirmation after completing the final interview where it was down to me and one other candidate.

My manager called me into his office, and I figured the cat was out of the bag. Either the other employer called him, or I was getting the Ax because I was two weeks out from crossing 1560-hours. So I enter the room with my resignation in hand with nothing to lose.

He wouldn't accept my resignation, told me my layoff was off the table and my Manager offered me Regular Full-time if I'd withdraw from the other employer's consideration and drop my second job. He gave me a weekend to decide, and I accept and did as he asked.
.

20-weeks pass and finally my manager tells me I'll see Regular Full-time status in my profile and I do. HR contacts me to sign up for benefits, and I see blue skies again, or so I think. My Manager retires, and I'm put under this new Director I started the story with.

It turns out my Manager got me a lesser Regular Full-time status with a weekly range of 30 to 39hrs/wk with no restrictions. That exact classification doesn't show in my employee employment records, just the Regular Full-time status. However as mentioned Payroll sent me info defining and explaining my status. It's not the straight 40 I was promised, and my new director says he's not obligated to honor my previous title, schedule, hours or benefits the previous administration secured for me and he's reducing my hours to drop me off benefits.

Looks like I'm being shown the door. They appear afraid to fire me. Do I have any options? I still have a job, but with a 45% hourly reduction, my savings are becoming depleted.

 

[cbg]

I have one question because the amount of irrelevant detail in your post has made it unclear.

RIGHT NOW, are you working hours for which you are not being paid?

 

[Brianna_Z]

I have one question because the amount of irrelevant detail in your post has made it unclear.

RIGHT NOW, are you working hours for which you are not being paid?

My hours are paid, a reduction of 46% from 40 to 25hrs/wk.

I've refused to continue to work as the independent contractor. Those hourly wages were 20% below my normal hourly anyway, those duties are no more.

I continue as an employee @ 25hrs per week.

 

[Brianna_Z]

I mentioned this was multi-pronged.

My hours are paid, I never suggested they weren't. "Employee Misclassification" is wage theft.

After refusing to work my Directors dual status scheme, I was given a reduced schedule, taken from 40 to 25hrs/wk as mentioned. That reduction can be seen as retaliatory resulting from blowing the whistle as was my demotion.

HR doesn't agree; they see my demotion as the result of placing my old duties inside the independent contractor's position which I've chosen not to accept. My resulting employee title reflects my updated duties and is not called a demotion.

My hourly wage is also still the same but a 46% reduction in scheduled weekly hours, so my take home has almost been halved. I'm also still receiving my previous health benefits, at least for now. HR says I'll keep those until this December as my average hours are dropped below 30per/wk, and my Full-time status is taken away.

On the independent contractor's side, those hourly wages were lowered and set 20% below my normal hourly as an employee. That was part of my wage theft allegations.

Oddly enough I can reclaim those IC hours and add that income back to what I make as an employee in the building; this is still an option. I'd have to accept the IC status for those duties, the reduced hourly wages and carry my own liability insurance to perform that work off property. I'm told under this status I will not receive OT and those hours will not count towards my benefits eligibility.

In short, I accused my Director of Wage Theft "Employee Misclassification" because he wanted to avoid paying my OT, and he wanted that portion of my schedule generating those hours moved into another budget. The independent contractor status was the way he found to offload those duties from his department's budget to another.

The result of turning him in:
1) Demotion to an entry level position and stripped of my responsibilities.
2) Weekly Schedule reduced.
3) I was accused of wage theft. "Unauthorized hours, benefits and promotion."
4) While defending against this, I discovered I wasn't given the exact employment classification I expected one year before. This discovery was accidental. (the bait and switch) It turns out the promotion to Full-time I received was the lesser of 2 Regular Full-time categories at my company. Connected to #3 My new Director claims that Full-time promotion was not authorized under the previous administration and that Part-time to Full-time status is earmarked to be taken away.
5) According to HR, I'm on my way to becoming reclassified as Part-time again, and my scheduled hours already reflect that.

All of this drama occurred after reporting the "Employee Misclassification" incident. I have a feeling he wanted to unwind me from benefits status anyway, failed to do the due diligence on how I achieved that status with the previous administration and made a misstep when he created a dual status Employee/Independent Contractor. I called him on it, and HR is covering him, creating the proper managerial labeling for his actions and throwing me under the bus as if I was stealing hours and benefits to justify the whole mess.

As far as those allegations HR made against me, they've backed off on that recently. I argued I don't make or approve schedules or approve timesheet's and I certainly couldn't promote myself to Regular Full-time status. But HR has told me the decisions and actions taken will stand.

Everything that's followed has been to excuse and justify his knee-jerk behavior when I stood up to the abuse.

The previous administration isn't clean either with their Bait and Switch. I recently spoke with my retired Manager, and he told me how I ended up with the lesser Full-time status. He just never got around to telling me what he secured, which was timely information I needed and would have affected my decision to stay or not. I'm pissed because that Full-time status has a 30hr/wk minimum built in and the PTO scale is less under that classification. The offer he made me was for a regular 40. Funny, he defended it, telling me he got me the full-time status I asked for but couldn't justify the full 40hr status he promised me to his boss, and it was he who substituted the lesser.

The deception in the Bait and Switch is all largely moot now because this new Director doesn't respect the status change anyway, says it wasn't approved and is working to remove it.

 

[cbg]

I think that you do not understand very much about employment law. There is no such thing as "bait and switch" in this kind of situation. Barring a bona fide, legally enforceable contract or CBA that expressly states what your job duties are, on any given day they are what your boss says they are and can be switched at a moment's notice, or no notice, with or without your agreement. The same is true with your full time or part time status.

The ONLY legal option you might have had would have been a wage claim for those hours that were unpaid; however, if I am reading the timeline right, you are past the statute of limitations for that. That is why I asked if there were ongoing issues with wages being unpaid. You have said that there are not. Therefore, there is no legal action for you to take.

 

[Brianna_Z]

As far as your first comment "I think that you do not understand very much about employment law." I don't find that particularly friendly, in fact, I find it rather condescending because I'm not calling myself an expert. At best I am a neophyte. I'm here to gain a deeper knowledge about Labor Law, and I'm looking for options to bolster my case which is currently filed with the appropriate agencies and is currently moving at a snail's pace.

Each agency has focused on different issues. The Employee Misclassification issue, for instance, is being split into separate concerns. One born from the Federal Acquisition Regulation (FAR) compliance because our cooperation is involved in taxpayer-funded projects to Overtime, wage, and benefits avoidance. Then there are the tax issues Employee Misclassification creates. Lastly, there are the retaliatory acts that followed after the incident was reported like the demotion and such.

Thanks but this seems too complicated for this forum.

 

[Brianna_Z]

I can see my Employee Misclassification URL links in the top post were removed. This was a core issue of this post were an employee can not be an independent contractor under the same employer at the same time unless very strict criteria are meet. (IRS Info. Ltr. 01-0069) So if links are a limitation of this forum I can only tell half a story or write twice as much to get an intelligent response.

Search "Can a Worker Be Both an Employee and an Independent Contractor?"
"Typically a worker cannot be both an employee and an independent contractor at the same company. An employer can certainly have some employees and some independent contractors for different roles, and an employee for one company can perform contract work for another company."

Here is a good article on my predicament, I hope the link works W-2 & 1099 To The Same Person « AccuPay[/URL] or google "W-2 & 1099 To The Same Person"

This article outlines whats accepted and what's not, its pretty narrow. In my situation I was enticed to help my director move some of my hours to another department so he wouldn't have to pay the overtime for those duties. He in fact did a bait and switch throwing those duties to an independent contractors payee account. He's not a very honest person. Not only did he want to stop paying overtime, second he lowered my hourly wage 20% below what I'd always been paid as an employee for the same task, third he wanted to pull my hours below benefits level so the IC hours never counted towards my YTD hourly totals.

My employer is now being investigated because he is creating dual status Employees / Independent Contractors. They've also gone to the extremes to not be audited and have elected to combined the IC wages with the employee wages and pay Federal, Social Security and Medicare taxes from these payments so there are no W-2 & 1099's submitted to the same person within the same year.

The argument I've heard is in treating the IC wages this way they are acknowledging this is an employee, not an IC and as such have to pay the overtime wages worked.

Clever or stupid who knows but I've called attention to the wage theft activity, filed my complaint and have paid the price with a demotion, 46% hourly reduction and they are after my Full-time status now which I explained earlier. I was also accused of wage theft myself which supported the premiss for the actions taken against me. The incident was raised up the corporate ladder because of the number of employees involved, "self investigated," and my claim was found to have no merit and deemed a standard pay practice with the matter "closed."

I've learned HR is there for the employer not the employee.

A new trick applied to an old scheme; we'll see how they fair with a little DOL and Wage and Hour attention.

 

[cbg]

Here's the thing.

As you yourself point out, you cannot be both an employee and an IC, and an employer trying to claim otherwise is simply making a fool of himself. It is very easy to be an employee; it is not so easy to be an IC. No agency is going to take any notice of an employer making that kind of a claim; you're simply not going to get anywhere with a claim of misclassification. You are clearly an employee; you are being treated as an employee, and if the employer seriously tries to say you're an IC for part of the time, that's going to be along the lines of, "yes dear, now run away and let the grownups talk".

Since you are an employee, instead of a misclassification issue you have a wage issue. If you are NOT being paid for all the time you actually work, you can file a wage claim for that. But there are limits to how long you have to file such a claim and unless the problem is ongoing you appear to have missed the window in which to do so. You have said that the problem is not ongoing; therefore there is nothing to do.

There is nothing even remotely close to illegal about cutting your hours, making you part time, or changing your duties. The law will fully support your employer's right to do any of those things unless you have a legally binding and enforceable contract or CBA (not an employment agreement, not an email or a letter or anything else, even in writing - it has to be a CONTRACT to have legal teeth) that expressly and in so many words says he can't.

So what more do you think you have? Your state is not particularly employee-friendly when it comes to wage and hour issues.

 

[Brianna_Z]

Like I said; "this is already filed and its supported with a ton of evidence" My company has boxed themselves into defending the Independent Contractors status they placed me in, so we'll let them dance around to protect that quagmire until they see the light. They also created a dual wage situation with me, where they dropped my wages by 20% only on the hourly IC wage, then as an employee my hourly pay remained the same. So they now have to explain why I'm worth something different in each employment category. In the end, everything they did sidesteps overtime and the reporting hours to be counted for benefits eligibility. These are all going to be tough questions to answer.

I could care less about the small money from the % change, for me, it's more about the lost annual revenue those duties provided, which is about 10 grand a year. I'd performed that work over five years as an employee before they placed these functions under the IC employment status, its that IC status I refused to work under that is the central focus of my claim.

The bigger and more costly issue is the retaliation that followed. Combined with the loss from the duties I no longer perform, my take home wages are down 46%. My boss demoted me one week after I turned him in, and he started the attack on my employment status to take away my Regular Full-time status under the premiss it wasn't authorized. All this falls under retaliation after exposing and reporting their illegal pay practice. Federal law protects wage and hour whistleblowers from retaliation. Once the DOL accepted my claim I had this protection and my company was also notified in writing but has ignored that.

This case was already well developed after preparing materials to defend myself against their wage theft allegations in their kangaroo inquests. When they moved to a punishment phase with that side show I filed a case with our Ethics division. Thru this they've already defended paying employees under the IC status thru this corporate Ethics investigation. We are a large enough company to have one of these. That documentation and the results of their internal investigation has also been turned over to the DOL.

At the moment they are claiming there was no illegal pay practice; therefore, there was no retaliation. All I can say is good luck with that.

I got all this into the DOL within the 180-day timeframe. The DOL opened up a case for me with the Wage and Hour Division. Each agency is interested in different aspects. The DOL more in the federal contract compliance side. Our company takes federal projects. President Trumps H.J. Res. 37 might throw a monkey wrench into that side of the DOL investigation, we'll see. The Wage and Hour Division is looking into how they are avoiding overtime and deflecting those "hours" from payroll consideration and employee YTD hourly totals.

Thanks for your consideration but you're not acknowledging this is already filed and is happening. Only thing is it's moving at a snails pace since government is involved.

 

[ElleMD]

Like I said; "this is already filed and its supported with a ton of evidence" My company has boxed themselves into defending the Independent Contractors status they placed me in, so we'll let them dance around to protect that quagmire until they see the light. They also created a dual wage situation with me, where they dropped my wages by 20% only on the hourly IC wage, then as an employee my hourly pay remained the same. So they now have to explain why I'm worth something different in each employment category. In the end, everything they did sidesteps overtime and the reporting hours to be counted for benefits eligibility. These are all going to be tough questions to answer.

It isn't clear at all who you filed this with or when. There is absolutely no reason they would have to pay you the same rate for different jobs, or parts of jobs. It is totally and completely legal to pay for one set of duties at one rate, and others at another. It is not even all that uncommon. I have literally hundreds of employees doing just that and it is entirely legal (and yes, we are audited on this every year and have always been compliant). The only issue is whether or not you were correctly classified as an IC. If those duties were at a different location, not the exact same as your "employee duties", and you were required to have your own insurance and liability coverage and such, it is entirely plausible that you were correctly classified. It is also possible you were not, but it is far from a crystal clear violation of wage and hour laws. If this situation ended some time ago, there is virtually no recourse. They can not add you retroactively to any insurance plans, nor contribute retroactively to UI for those hours.

I could care less about the small money from the % change, for me, it's more about the lost annual revenue those duties provided, which is about 10 grand a year. I'd performed that work over five years as an employee before they placed these functions under the IC employment status, its that IC status I refused to work under that is the central focus of my claim.

You indicated that you would no longer perform the IC duties, which is your right. Your employer was not required to keep you at the same amount of money or make up for those hours with other duties. You are working less and getting paid less. If you wish to work a full time job, you are welcome to apply for full time vacancies elsewhere. This job appears to be part time.

The bigger and more costly issue is the retaliation that followed. Combined with the loss from the duties I no longer perform, my take home wages are down 46%. My boss demoted me one week after I turned him in, and he started the attack on my employment status to take away my Regular Full-time status under the premiss it wasn't authorized. All this falls under retaliation after exposing and reporting their illegal pay practice. Federal law protects wage and hour whistleblowers from retaliation. Once the DOL accepted my claim I had this protection and my company was also notified in writing but has ignored that.

This case was already well developed after preparing materials to defend myself against their wage theft allegations in their kangaroo inquests. When they moved to a punishment phase with that side show I filed a case with our Ethics division. Thru this they've already defended paying employees under the IC status thru this corporate Ethics investigation. We are a large enough company to have one of these. That documentation and the results of their internal investigation has also been turned over to the DOL.

At the moment they are claiming there was no illegal pay practice; therefore, there was no retaliation. All I can say is good luck with that.

Nothing you describe above would fall under illegal retaliation. I've handled many, many of these claims. You can be disciplined or even fired for working more hours than authorized and it isn't your manager's responsibility to track it for you. None of this is wage theft. You have been paid for all hours that you worked. Wage theft would be if they were not paying you for hours worked, not that at some point you might have been misclassified or reducing hours and pay when an employee has a reduction in duties.

I got all this into the DOL within the 180-day timeframe. The DOL opened up a case for me with the Wage and Hour Division. Each agency is interested in different aspects. The DOL more in the federal contract compliance side. Our company takes federal projects. President Trumps H.J. Res. 37 might throw a monkey wrench into that side of the DOL investigation, we'll see. The Wage and Hour Division is looking into how they are avoiding overtime and deflecting those "hours" from payroll consideration and employee YTD hourly totals.

They open a case for every complaint. Claims tend to move at a snail's pace unless they are clear and overt violations. Everything else gets shuffled to the bottom of the deck. You are just going to have to be patient. They do investigate every claim, even ones where there is no clear merit, which takes time.

 

[Brianna_Z]

It's begun, my company took the stance they didn't know they'd broken the law and what happened to me was the only incident. I guess this is the position most employers start from. However, my investigator seems to be a pretty smart guy and found this wasn't the case and it turns out I'm no longer alone.

You mention "Overt violations," I'm hoping this may turn out to have a relatively quick resolution considering. It turns out the WHD discovered a co-worker of mine had already taken them to court over this same issue and they chose to settle the matter before a court decision could be reached. Do you think this will help speed up my case?

I looked it up on the internet, I knew she'd quit but didn't know why because we weren't friends outside the office. It turns out after she reported the issue she left during the retaliation phase, so it's different from what I've experienced so far because I stuck it out and have endured the defamation, demotion and hourly cuts. She also had some sexual harassment elements I didn't experience.

Like I said the WHD is in the interview phase now, and it also turns out the 2 of us might not be isolated cases either. It appears another 6 of us were made into dual exempt and none exempt employees, so a pattern is emerging. I'm guessing this has saved them a lot of money or they wouldn't have done this and it was worth protecting this practice. Has there been some change in Washington over labor law to make employers think this is OK?

I just want my position and reputation restored because the actions taken against me were justified under the false guise that I was taking hours and benefits that were not mine. This is how they justified the actions they took against me after I reported the wage theft. I'm at the point now that they've shaved so many hours off my schedule that I'm paying my bills out of my savings account. Will I be able to get this money back or has sticking this out thru the abuse been a mistake?

I'm hoping they have to publicly justify their decision making process because they attempted this with me about 5-years ago under a previous administration and back then we had an honest HR woman who I took this issue to before my manager implemented the pay practice. She outlined what my managers could do and couldn't do with my position, and I thought it was all settled then. So we already had in place a policy that covered "IC" workers and who could and couldn't be placed under this exempt payment scheme. Its like they didn't write any of this down because they did the same thing again and this time they threw me under the bus, dismantled my position, reduced my hours to get me to quit. I want their misdeeds known all the way up our corporate ladder to show how my boss and HR justified their abuse, defended themselves all because they didn't do their due diligence with a policy that was already in place.

Just pisses me off!