Q & A Table of Contents
My Employer Is Trying To Make Me Pay For Their Mistake
From: Genevieve, London, UK
Question: I have started a new job as a temporary employee, employed through an agency and paid by them, (but working for another company). After I negotiated my rate of pay I questioned the overtime provision stated on my time sheet. I was told that this was a standard agreement between the agency and the client. (I was unaware of this at the time of my pay negotiation)
Since then the agency has returned to me and said that the client will not pay the overtime as they were not told of this provision when employing me. The Agency then has passed this onto me and said I will not be receiving overtime. I had been working for 2 weeks by this time with the understanding that I was to receive overtime payment.
I have taken this matter to the manager at the agency who says that they made a mistake but because the client will not pay then I cannot receive OT. I believe that they should have got their facts straight before confirming the OT provision to me. I believe that I should renegotiate my hourly rate at a higher level inclusive of OT and get the agency to pay the difference.
The agency offered two alternatives.
1. I stay on the rate I am on at the moment without overtime or
2. I take a lower rate of hourly pay and receive OT.
The break even point is at about 50 hours and to me the offer was pointless as I am expected to take all the concession. IS there room for negotiation?
Response: If your manager at the agency indicated that the agency made a mistake, it is very hard for me to understand why you should have to pay for their mistake.
My first recommendation is that you tell your agency that neither of the 'options' they propose is appealing to you and that you are not prepared to make a decision at this point.
For your next step, you should confer with any relevant public/governmental agencies that oversee pay and contract issues. It could also make sense to check with Legal Aid or some other legal agency -- perhaps even a law firm -- to find out whether you have any rights. In the USA, a clever lawyer could well bring a lawsuit that could yield you both the overtime pay currently due you plus punitive damages for the bad faith practices of your agency.
After you have done this research, you should also look to other temporary employment agencies as well as potential full-time jobs to find out what alternatives are open to you.
Once you understand your legal position as well as your alternative employment options, then you can undertake further discussions with your agency. Don't ask questions that can be answered with a 'yes' or 'no'; ask open-ended questions. For example, "If the agency made a mistake in its contract with the company to which I have been assigned, why should I be expected to forego the benefits of my existing employment contract as regards overtime pay?"
If you know you have legal rights under the contract -- or if you have good alternative job possibilities -- you should be prepared to use that information in your negotiating strategy. You can mention the legal rights, but I would not recommend discussing alternative employment. Once you have lined up another job, then you can offer your existing agency the opportunity to live up to their contractual obligations to you -- and know that if they fail to do so, you can quit and get on with your career under better circumstances.
One question remaining in my mind is whether the person in your agency who expects you to pay for the agency's mistake is the 'drop-dead decision-maker'. Perhaps he or she has a supervisor who needs to be made aware of the situation; it may well be that the ownership of the agency should know about the agency's contract mistake with their client.
Frankly the whole situation sounds as if the agency is really trying to take undue advantage of you. If you take the attitude that you are their victim before taking the next steps in the negotiation, you will most certainly emerge as a victim. So find out what alternatives are available to you and don't be afraid to assert your rights. Don't pay for their mistake.
Good luck,
Steve
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