If I’m homeless and get a seasonal job what are my rights about pay and hours?

If you are hired to staff a holiday tree sale, a summer carnival, a pumpkin patch, a Halloween costume sale or any other “pop-up” seasonal business, you are entitled to the same Fair Labor Standards as permanent employees. You have to provide the employer with your correct contact information and your Social Security number (because the employer is obligated to withhold income taxes and Social Security money and may need to mail your last check to you after the season) and in exchange, you should get full correct contact information about the employer in case anything goes wrong and you need to assert a legal claim against that employer. The U.S. Department of Labor, which regulates and enforces laws about wages and hours, states the following facts about seasonal jobs:

You should at least be paid the federal minimum wage- no matter how few hours you work. Currently, the minimum wage is $7.25 per hour.

Jobs that include tips have to pay at least “$2.13 an hour in direct wages if that amount plus the tips received equal at least the federal minimum wage.”

You can only get overtime pay if you work more than 40 hours in a week. You do not get overtime pay just because you work late or on the weekends; it is only about the number of hours you work.

Laws about when you get breaks for meals or rest are made by state governments, not the federal DOL.

If you are not paid at all or do not get fair wages, you can file a complaint with the DOL.

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Do homeless employees have any legal right to get out of doing the dangerous day labor jobs?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

If day laborers see that working conditions look too dangerous or difficult for them, they can opt out of doing the work. They are not necessarily entitled to be assigned to different work, but opting out of something dangerous is the best way to avoid getting sick or injured.[i]

If an employee starts the work and then quits when he discovers that it is risky, he is still entitled to get the minimum wage for the time he worked, whether or not he finished the assigned task. This is basic contract law. The worker agrees to work and the employer agrees to pay for the work. If the worker does part of the job, he is entitled to part of the pay.[ii]
Many workers guess that construction companies, landscapers, and other contractors bring in day laborers for work that involves heavy lifting, harsh chemicals, and other things that are hard on the body because they don’t want to risk injuring the full-time employees who are covered by workers’ compensation insurance.Some employers may also think that temporary or day laborers don’t have any way to make a legal claim for workers’ compensation benefits.  But, in fact, even day laborers are entitled to have their work-related medical expenses covered by the employers’ workers’ compensation insurance.[iii]

Workers’ compensation programs exist to efficiently resolve workplace injury claims so that workers and employers do not have to go through the expense and long processes involved with a negligence case in court.[iv] The Occupational Safety and Health Administration (OSHA)[v] regulates workplace safety. That organization advises employees at unsafe or unhealthy work sites to take steps to avoid danger:

1. Ask the employer to fix the hazard.
2. Ask the employer to assign you to different work.
3. Inform the employer that you will not do the hazardous work.
4. Stay at the work site until the employer requires you to leave.[vi]

These steps seem more applicable to permanent workers than temporary workers, but they are still a logical progression. If taking those steps does not result in your getting safer work, you can file a complaint with OSHA.[vii] Your state might also have an occupational safety and health plan under OSHA’s approval.[viii] If you have stayed at the job and become injured or sick due to unsafe or unhealthy conditions there, you should file a worker’s compensation claim and also make sure that OSHA knows how you got hurt or sick.
For either or both of these claims, seek help from the nearest legal aid office or homeless advocacy group.[ix] They will help you collect the medical records necessary to document your suffering. These claims processes involve a lot of data collection and many formal procedures.
Once you have filed your claim form, either through OSHA or the state’s workers’ compensation office, you should expect to have meetings with investigators. The investigators will want to know everything about the job site, the other workers, the supervisors, the weather, the tools, the pace, your health going into the job, and many other details.

Unless you have filed an anonymous OSHA complaint, you will probably have to participate in an initial hearing to personally explain and answer questions about your injury or sickness in connection with the job. (If the job accepts responsibility for your injury or sickness, you won’t have to go through this hearing process; the workers’ compensation insurance will cover your medical costs as long as you follow the instructions they give you.)

If you do not prove your claim at that hearing, you can appeal the decision at another hearing through the workers’ compensation office. If that hearing is not successful, you can sue the workers’ compensation office and the employer in court for failing to properly follow the state workers’ compensation law.


[i] If the employer transported the employee to a far away work site and the employee opted out of the work as soon as he got there, he should not expect payment or a ride back, at least until the employer takes the other workers back. The contract was an exchange of work for pay. By backing out of the job before it started, the worker breached the contract. He can’t expect the former employer to spend money on him. Maybe the police can help. Phone calls to 911 are free. Explain your emergency as being removed from home and ask them to get you assistance from homeless advocates or any other nearby social services agency.[ii] Two sources that clearly explain basic employment law are: Merrick T. Rossein, Ed. THE EMPLOYMENT LAW DESKBOOK FOR HUMAN RESOURCES PROFESSIONALS (West, 2001) (See Section 4.) and Barbara Kate Repa, YOUR RIGHTS IN THE WORKPLACE (Nolo, 2005).

 

[iii] Locate your state Workers’ Compensation office through the blue pages of the phone book or on the Web at http://www.dol.gov/esa/regs/compliance/owcp/wc.htm. You will see that “employee” is defined to include any person who is supervised and paid by an employer.

[iv] It is not impossible for an injured employee or a deceased employee’s survivors to bring a negligence case against an employer. If the hazardous conditions were concealed or the law exempts the particular work arrangement from the workers’ compensation program, such a case is possible. A detailed demonstration of how to prove that kind of case is in Christopher M. Mislow, Cause of Action Notwithstanding Workers’ Compensation Statute Against Employer or Fellow Employee for Injury to or Death of Employee, 11 COA 717 (updated through 2006).

[v] The OSHA Web site is at http://www.osha.gov/.

[vi] OSHA’s instructions for dealing with a dangerous worksite are at http://www.osha.gov/as/opa/worker/refuse.html.

[vii] OSHA’s complaint Web site says that any employee can file a complaint about employment safety without giving his or her own name. The site includes an online complaint form and all of the necessary information about filing a complaint. http://www.osha.gov/as/opa/worker/complain.html

[viii] OSHA approved state occupational safety and health plans can be reached via http://www.osha.gov/dcsp/osp/index.html or your state’s department of labor and employment. http://www.dol.gov/esa/contacts/state_of.htm

[ix] Find legal aid offices through LawHelp at  http://www.lawhelp.org/ and homeless advocates through the National Coalition for the Homeless at http://www.nationalhomeless.org/resources/local/local.html.

If you work at day labor or another occasional part-time work that pays you in hand and does not ask about your address, do you have to accept any amount of pay they give you?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

The Migrant and Seasonal Agricultural Workers Protection Act[i] does allow for the possibility that temporary and transient agricultural workers can be paid “by the piece” (more likely by the bushel or section of a field), but generally the answer to this question is no, you do not have to accept any amount of pay an employer gives you.

The federal Fair Labor Standards Act (FLSA)[ii] requires that every worker be paid at least a certain hourly rate known as “the minimum wage.” Even the piecework rates in temporary agricultural jobs have to pay at least as much as workers would get at the hourly minimum wage rate.  The minimum wage rate is set by the Wage and Hours division of the U.S. Department of Labor. You have to get at least the minimum wage for working up to forty hours in a single week. Your state might have an even higher minimum wage than the federal rate.[iii]

If you work for the same employer for more than forty hours in one week, you are supposed to get paid fifty percent more (per hour or other pay unit) than the rate you earned for the first forty hours. Even if you are paid in cash and the employer does not know your last name, let alone where you sleep at night, you are entitled to earn these rates of pay.  Whether you have an address also has nothing to do with your right to be properly credited for the full number of hours you have worked.[iv] Even though the IRS and the Social Security Administration don’t require temporary and day labor employers to report workers’ addresses to them (because those employers do not have to withhold income tax or FICA payments), they still have to follow the FLSA and the regulations that go with it.

The Department of Wages and Hours has a “Fact Sheet on the Construction Industry”https://www.dol.gov/whd/regs/compliance/whdfs1.pdf listing some of the common ways employers in that industry, which frequently employs homeless temporary workers, try to avoid giving full credit for work time: failing to record time, claiming work over forty hours counts only as comp time instead of paying the 150% wage rate, requiring overtime hours to be held aside in a time bank, not paying for travel time to job sites, etc… All of those actions are illegal.

The Wage and Hours Division advises workers to contact the nearest DOL office[v] if work hours have not been properly credited or if they have not been paid the minimum wage. The office that you contact will investigate your situation and enforce the Fair Labor Standards Act.It would also be wise to contact an attorney for representation. Private law firms can sometimes donate their services to help homeless people get their proper pay.[vi] If none are available, contact the nearest legal aid office.[vii]

Whether your legal help comes from only the DOL office or that office along with your lawyer, you should have a log of your hours and names of witnesses who worked with you. You should also be prepared to tell every possible detail about how and where you were recruited and to name and the individuals who supervised you. Those kinds of proof are necessary to demonstrate that you truly did work at that job for the claimed amount of time.


[i] The Migrant and Seasonal Agricultural Workers Act is at 29 U.S.C. 1801 and the sections following 1801.  An entire Web site about that law and the regulations that go with it. http://www.dol.gov/esa/whd/mspa/index.htm

 

[ii] The Fair Labor Standards Act is at 29USC 201. The Dept. of Labor regulations that go with it are at 29 CFR §510-794. Those laws and plain English fact sheets and other explanations about the FLSA are online at http://www.dol.gov/compliance/laws/comp-flsa.htm.

[iii] State minimum wage rates are published online at http://www.dol.gov/esa/minwage/america.htm. If that site is unavailable contact your state department of labor or navigate through its Web site. http://www.dol.gov/esa/contacts/state_of.htm

[iv] A Dept. of Labor Fact Sheet explaining how employers are supposed to count workers’ time as work time (i.e., how to know when you should be paid for breaks, waiting periods, etc…) is at http://www.dol.gov/esa/regs/compliance/whd/whdfs22.htm.

[v] The Dept. of Labor offices are listed at http://www.dol.gov/esa/contacts/whd/america2.htm and in the blue pages of the phone book.

[vi] Example: The Washington (D.C.) Lawyers’ Committee for Civil Rights and Urban Affairs matches private law firms with indigent clients whose civil rights have been violated. Summaries of some of their employment cases, along with the complaints they filed in court, are at http://www.washlaw.org/news/n_case_decision.htm.

[vii] Legal Aid Offices are listed at http://www.lawhelp.org/. You can also get contact information for local legal aid offices from the public library. A recent class action case was brought by day laborers who weren’t paid fairly after being transported from Maryland to Mississippi to clean up debris from a hurricane. Marroquin v. Canales, 236 F.R.D. 257 (D.Md. 2006). Find other cases by looking in any books published by Thomson West Publishing using the topic “labor and employment” and key numbers 2210 and up.