warranty, on-call and overtime pay

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warranty, on-call and overtime pay

My brother works in the HVAC field. I really don’t think his boss is paying him correctly and want to know if he has a right to seek out what his boss isn’t paying him for. I would like to have something to show him so hopefully he will stand up for himself. The issues that I have discussed with him are the following. First is his boss cuts any pay that the company can’t bill for. For example he doesn’t get paid for any warranty work the company provides. So my brother has to work extra time to cover that time in order to reach his 40 hours a week. He usually works 9-10 hour days and works threw his lunch. However, his boss only pays him for time that he can bill for. Also, a big issue I think is with his on-call/overtime. He is supposed to be paid 90 stand-by pay per on call week, some of his co-workers don’t even know about the stand-by pay. Yet, we recently reviewed all his pay stubs and nothing stated stand-by pay is listed. Additionally, his boss really cuts down on his overtime hours when he is on call. Is my brother supposed to be paid for travel time during jobs when he is on call after regular business hours and weekends? I don’t exactly know all the details but this is just what he has told me over all this time and won’t stand up to his boss about any of it no matter how much I think he has the right to. Let me know so I can try and get him to seek what he deserves if he deserves it. I really feel like his boss is taking huge advantage of him, never mind not paying him enough for his experience but I know that’s not a legal matter.

Asked on August 22, 2017 under Employment Labor Law, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

1) It doesn't matter if the employer cannot bill for or is not paid for a job--that's the employer's issue. An hourly employee must be paid for ALL time he works, regardless of billing to customers.
2) The morning and evening commutes to/from work do not have to be paid; but mid-work-day travel time (e.g. from one job or customer location to another) IS work time and must be paid. 
2a) The first trip directly to a customer or job site from home (and therefore the last trip directly from a job site or customer location to home) are paid only if and to the extent they exceed the regular trip to the employer's location: e.g. if driving to the employer's office/shop/etc. take 1/2 hour, if your brother drives directly from home to a customer and it takes 45 minutes to get there, he should be paid for 15 minutes--the 15 minutes the trip to the customer exceeds the trip to the workplace.
3) There is no legal obligation for on-call or stand-by pay if the employee is at home (or anyplace he chooses other than work) and is free to do what he wants while on call, subject only to being able to respond to call. It is the employer's choice whether to pay for simply being on call, so if the employer chooses to not pay, there is nothing to do about it.


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