The overhiring syndrome - ACalfornian

I’m not an attorney; therefore, cannot give you any legal advice.  Please consult an attorney should you need help with the issue raised below.

I’ve been in this industry too long.  Have watched this transcription industry go from “a soccer mom’s best friend” where a soccer mom could take care of her children at home and at the same time make some extra money to support her family…to “transcription goes to New York Stock Exchange” with Fortune 500 companies investing heavily in transcription companies, when greed set in with those “suits” taking over the transcription industry, helping themselves with chunks of investors’ money in the form of personal bonuses, and throwing in the MTs to take the fall in the form of huge pay cuts and voice recognition platforms!

In the midst of all that came the overhiring!  The employers have been hiring “full-time employees” offering them benefits, but have not been providing enough work to them.  As a result, though hired as full-time employees, these MTs are unable to make a living due to lack of work.  It’s about time to send a message to the “suits in the industry” about the Fair Labor Standards Act.

In a case decided by the highest court of the land, i.e., the United States Supreme Court, the Court interpreting the Fair Labor Standards Act said that an employee is entitled to pay for “waiting for work” and for “standing by on call” too even if there is no work.  Here are excerpts from that case:

Tennessee Coal Co. v. Muscoda Local No. 123, 321 U.S. 590, 599 (1944)

Section 3(j) of the Act expressly provides that it is sufficient if an employee is engaged in a process or occupation necessary to production. Hence, employees engaged in such necessary, but not directly productive activities as watching and guarding a building, [Footnote 13] waiting for work, [Footnote 14] and standing by on call [Footnote 15] have been held to be engaged in work necessary to production and entitled to the benefits of the Act.

[Footnote 14]

Fleming v. North Georgia Mfg. Co., 33 F.Supp. 1005; Travis v. Ray, 41 F.Supp. 6.

[Footnote 15]

Walling v. Allied Messenger Service, Inc., 47 F.Supp. 773.

And the Department of Labor has the following definition for the term “work time” with links and excerpts (with emphasis added):

http://www.dol.gov/whd/flsa/index.htm

Hours Worked (PDF): Hours worked ordinarily include all the time during which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace.  (emphasis added) 

<http://www.dol.gov/whd/regs/compliance/whdfs22.pdf>

Application of Principles

Employees "Suffered or Permitted" to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable. (emphasis added)

Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait." (emphasis added)

Based on the above, it is my understanding that if the transcription companies do not have enough work for the MTs because of the overhiring or because the client is not sending enough work because the physicians are on vacation, the MTs are still entitled to their full-time pay if their status is full-time.  It’s not the MTs’ fault if there is no work.  The transcription business is a risky business which the companies knew before hand when they set up a transcription company.  They need to learn how to deal with their losses, and not rub those losses on to the MTs.

I know quite a few of you are very resourceful.  Have an attorney look at these links and send out a message to the “suits in the transcription industry” about overhiring.

P.S.:  I will not respond to any responsive messages under this thread; I simply do not have the time.  Just wrote the above to help you all.  Good luck!