Can they change my pay or force me to do dangerous work?

I am a office employee who is made to do several wharehouse job's and maintence work because I am a man. I am am not covered under wharehouse insurance and feel I am in danger of getting hurt. Also my employer has decided to cut my overtime and change my pay scale to a straight salary without notifying me. Do I have a case?

1 answer  |  asked Mar 15, 2001 8:29 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
You may have an overtime claim.

To answer your questions:

1. Doing warehouse work: Unless the office, the warehouse, or both sets of employees are unionized, you employer probably could require you to do both office work and warehouse work. Now, you said that you were selected to do the work because you are a man. If that is true, and assuming there are no other male office workers, or all male office workers are required to do warehouse work, you might, but I say only might, have a sex discrimination claim. Whether you do will depend on the details of your situation. But please note that I tend to doubt that you have a viable claim. When it come to the insurance, that is something you do not need to worry about. I guess one reason you don't want to work in the warehouse is the risk of injury. If we leave that asside for the moment, the employer has an obligation to see you are properly insured under the Workers' Compensation Law. If you get hurt in the warehouse, you will be covered as if you were a regular warehouse employee. Your employer would then have to deal with its insurance carriers and the Workers' Compensation Board concerning your misclassification.

2. Overtime. An employer has no obligation to give you overtime hours. So, if the employer wants to keep you at 40 hours per week, the employer would be well within its rights to do so.

3. Putting you on straight salary. A lot of employers think that all they have to do to save money on overtime pay is to make hourly employees salaried employees. It isn't that simple. Unless you are in a job which requires a lot of discretion and cannot be easily supervised (an outside salesperson is a good example), you are probably a non-exempt employee under the federal Fair Labor Standards Act and the New York wage and hours law. As a non-exempt employee, the employer must pay you for time over 40 hours per week. The employer cannot escape this requirement by simply making you a salaried employee. You have something here.

As to what to do, you need to keep track of your hours. Get yourself a little pocket calendar, and keep track of your time, including lunch breaks. If your employer is still keeping track of your time, all the better, but keep your own records as well.

You, as well as other employees, like the warehousemen, who are not being paid for overtime, can sue your employer for unpaid overtime, that is, for time in excess of 40 hours per week at 1.5 times your base hourly rate (time and a half). You can also go to the US or NYS Department of Labor to file a wage and hour complaint.

If I can be of help, feel free to call.

Sincerely,

posted by David M. Lira  |  Feb 19, 2001 2:35 PM [EST]

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