Amanda DeMatteis: Hi, Josh.
Josh Goodbaum: Hi, Amanda. What are we talking about today?
DeMatteis: I thought we would talk about something that could impact really all levels of employees – from hourly workers all the way up to executives. Let’s say you’re at work and you take on more job responsibilities. But you’re not getting paid for those additional responsibilities. You’re just doing them. Do you have any recourse?
Goodbaum: I think your recourse is in negotiation, not in the law. The law doesn’t say, “If you do 20% more work, you should get 20% more pay.” If you’re taking on more job duties but you’re an hourly worker and you’re not actually working any more hours, you’re not entitled to any more pay. And if you’re a salaried employee, you’re not entitled to any more pay either. Your salary – assuming you’re correctly exempt under our overtime laws – covers however much you work, however many or few your hours are.
So, your recourse is to go to your employer and say, “Hey, I’m doing more work. Can‘t you pay me more for it?” And if your employer says, “No,” frankly then your recourse is to find a new job, assuming you’re an at-will employee.
DeMatteis: Let’s change the hypothetical around a little bit and say that your employer comes to you and says, “Hey, Josh. I really want you to pick up X.” Maybe it’s management of a new department; maybe it’s taking on more direct reports; maybe it’s taking on a completely additional role because there’s a restructuring going on. They say, “Listen, we’re gonna pay you some more money, but we’re gonna work it out. Let’s keep talking and let’s work it out.” What should you do as that employee in a situation where you’re being told you’re gonna get paid for this but you’re being asked to take on more work right now?
Goodbaum: Well, recognize that you’re in a really tricky and pivotal situation here if you’re this employee. Because what your employer wants – if they’re not operating in good faith – is for you to start doing this job and then they’re just going to string you along for a while. They might do that intentionally, or they might just do it because out of sight out of mind and they don’t get around to thinking about it.
So, what you need to do is to use this opportunity to negotiate now. The most leverage you have is when they’re asking you to do something. Once you start doing it, you’re losing your leverage every time you do it. If you are providing that labor essentially for free, then you’re not taking advantage of the leverage you have.
Now, imagine how this plays out in practice.
Let’s say you start doing the new work. You say, “Okay, I believe you. Thanks so much. Let me start doing this new job.” A few weeks or months go by, and you say, “Hey, boss. We didn’t figure out a new compensation scheme,” and your boss says, “Okay, let’s talk about it now,” or maybe your boss says, “Yeah, I’m trying to get around to it.”
Let’s say you reach an agreement. What if your boss doesn’t agree to make it retroactive to the time you picked up those new duties? You don’t have any legal recourse on the basis of that because – remember – you don’t have a right to be paid more for additional job duties.
Let’s say you and your boss can’t reach an agreement and you really come to an impasse and now have a decision to make of: “Okay, I either keep doing this job that’s more job than I originally agreed to, or I find somewhere else to work.”
So, the time to get this done is when your employer comes to you in the lurch, frankly, and says, “We need you to do more,” and you say, “Okay, let’s talk about the compensation structure of that right now and then” – and this is pivotal, Amanda – “let’s put it in writing, let’s memorialize. So, I’m gonna send you an email just to make sure I understood what you said. And you write back to me and say, ‘Yes, that is our agreement.’”
You don’t need a compensation structure to be in a formal written document. It doesn’t need to be an employment agreement. But the best practice is to have it written down somewhere so that in the (hopefully unlikely) event that there’s a dispute about it in the future, everybody can look back at that document and remember what they agreed to.
DeMatteis: That is so true in almost all areas of employment law. If you have an important conversation at work and it’s just a conversation, don’t be afraid to send your supervisor a follow-up email and say, “Hey, we just talked about such and such, and here is what I understood you to be telling me,” and put it in writing, because the one thing it can’t do is hurt you going forward.
Really great advice. Thank you, Josh, and thank you so much for watching. Take care.