Attorneys Richard Sinapi and Danilo Borgas were recently featured in Providence Monthly and SO Rhode Island magazines’ financial planning guides with answers to common questions asked by employees regarding their workplace rights in Rhode Island.
Below are some of the most common questions we encounter when representing employees.
1. Q: How much of my “work time” is compensable? For example, should I be paid for “on-call” time, time spent waiting for work, commute time, etc.?
A: It depends. For those paid by the hour, any time you are required to be at work is compensable. If your employer requires or allows you (without express permission) to work outside your usual hours and you do so, that is also probably compensable. For “on-call” time, if you cannot use that time as you please, it is usually compensable. In other words, if you are restricted in your ability to engage in other meaningful recreational and/or other activities of daily living because you are on-call, then you should be paid for the time. While commuting time to and from your home is usually not compensable, time spent traveling for your employer during the workday, such as between job locations, is compensable.
2. Q: Am I an employee or an independent contractor?
A: If you set your own hours, your own rates, and choose who you work for, you are likely an independent contractor. If you have a boss who sets those things for you, you are likely an employee. It is not your employer’s choice or decision on whether or not you are an independent contractor. It comes down to who actually controls the terms and conditions of your employment, not what documents you signed. So even if you sign an “independent contractor agreement” it does not mean that you are not an employee under the law.
3. Q: Can my employer pay different workers different rates for the same duties?
A: Sometimes. Such as when based on years of service or performance. However, employers may not pay employees differently based on a “suspect classification.” Federal law recognizes race, national origin, religion, sex, disability status, being over the age of 40 and citizenship status as suspect classifications. Rhode Island law adds color, sexual orientation and gender identity/expression. Those are called Protected Classes. Also, Rhode Island’s Pay Equity Law, effective January 1, 2023, prohibits employers from paying an employee at a wage less than the wage rate paid to employees outside a protected class for performing comparable work.
4. Q: What else does the new Pay Equity law mean for employees?
A: Rhode Island’s new Pay Equity Law requires employers to disclose pay ranges to prospective and current employees on request. It also makes it unlawful to prohibit discussions of pay among employees. Employers may not reduce an employee’s wages to comply with the law, nor may they inquire into your wage history in deciding what to pay you.
5. Q: I’m being scheduled for one- or two-hour shifts. Can my boss do that?
A: Yes, but if you are an hourly employee you are entitled to a minimum of three hours of pay for each shift, regardless of how long you are actually assigned to work unless you expressly and voluntarily agree to be assigned to shifts of less than three hours.
6. Q: I work on commission. If I leave my position before my commissions are paid out, do I still receive them?
A: Yes. Once you have done the work to earn the commission, you are entitled to receive it. In addition, if you are let go just before completing all the work that would entitle you to a commission, you may still be entitled to pay.
7. Q: I left my old job and had a significant amount of unused Paid Time off (PTO). Do I lose that benefit?
A: In Rhode Island, you are entitled to be paid out for any unused PTO if you have been employed for at least a year. However, this only applies when you leave; your employer can still adopt a “use it or lose it” policy that limits how much PTO you can carry over from year to year.
8. Q: What are my legal rights if the employer does not comply with employment laws, including wage and hour laws, or engages in retaliation if I report a violation of law?
A: Probably more than you think. In addition to reimbursing you for lost wages, you can often receive emotional damages, reinstatement, and payment of your attorney’s fees from the employer. Some laws, such as the Rhode Island Payment of Wages Act, also grant “liquidated damages” doubling the amount of back wages you receive (with interest). So, if your employer fails to pay you $1,000 in wages, you may be entitled to recover $3,000 plus interest and your attorneys’ fees. Also, if you are discharged or otherwise treated adversely by an Employer for complaining about violation of laws or governmental regulations pertaining to your work or refusing to engage in a violation of the law during the course of your work, you could be entitled to three times the amount of any damages you sustain.