Hopewell Junction, NY asked in Employment Law for New York

Q: In NY state, can my employer make me be on call for up to 9 hours every day without any kind of compensation?

I go into customer’s homes and measure rooms for my employer. I am employed full time with benefits but I get paid per “measure” ($16) and not by the hour. To be clear, I work for my company and am not an independent contractor. I get a W2 and benefits from them.

I often only get a few jobs as I’m in a rural area and am finished in 3 to 7 hours (Most of my time is driving more than the measures themselves). My job states that I most be “on call” and ready to take a job between the hours of 8 to 5 pm. So if I’m done by 12 pm, I need to stay at my home and cannot do anything until such time as 5 pm comes around. In the last year I might have actually gotten 1 job in this fashion (after I was done and home). They specifically say we cannot do anything (doctor’s appointment, oil change, etc ...) during the 8 to 5 time frame? Even if we are done by noon. With ZERO compensation. It just doesn’t sound right to me. Is this legally allowable?

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3 Lawyer Answers
Emre Polat Esq.
Emre Polat Esq.
PREMIUM
Answered
  • New York, NY
  • Licensed in New York

A: Do you receive a w2 or a 1099 at the end of the year? In other words, are you working for the company or "working for yourself". Sounds like there may be misclassification if that is the case. It depends on the structure of the employment but is sounds like there may be violations as you should be paid by the hour (even when on call or driving between destinations of customers) if you are not an exempt employee or a proper independent contractor. Further information is required to properly make a determination. Consider a consultation for a case evaluation.

V. Jonas Urba
V. Jonas Urba
PREMIUM
Answered
  • Tarrytown, NY
  • Licensed in New York

A: https://www.lexology.com/library/detail.aspx?g=cdf4806c-a217-4b05-8284-9d3e2ca47c55

It's complicated as you will see in the link above. Good luck!

Derek John Soltis
Derek John Soltis
Answered
  • Jersey City, NJ
  • Licensed in New York

A: You should sit down with an attorney to go over all of your compensation, and then look at if what is happening is violating the hourly.

Minimum wage is currently $7.25 per hour under Federal Law. In NY, it is between $11.10 and $15.00 per hour, depending on your employer and location as of December 31, 2018. There are limited exceptions to this requirement. If you are like most "employees", you are entitled to the full minimum hourly rate and are also entitled to one-and-a-half times your hourly wages for each hour worked over forty (40) hours per week.

So, if you are making less than minimum wage, or they are treating you as an independent contractor, it sounds like a violation or two may be happening.

And if you are an at-will employee, they can fire you for any reason as long as it is not against public policy.

At the end of the day, if you do not like the way you are being treated, you may be better off getting a new job. A lot of times wage disputes can cost goodwill with the company you work for, and end with you without a job, fighting to prove you did nothing wrong.

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