Jeremy Applegate is the chief of Wage and Hour for the State of Alaska Department of Labor. The goal of today’s episode is to inform workers, particularly seasonal workers who may have never worked in Alaska before, of their rights. Important things to know up front: workers are entitled to a written contract at the start of their employment which specifies how much they will be paid, when they will be paid, and how they will be paid. Most workers in Alaska are entitled to the state minimum wage of $11.73 an hour, and if a worker works more than 8 hours in a single day or more than 40 hours in a single week, most are entitled to overtime payment.
If you believe that your rights as a worker have been violated call: 907-269-4900 Tuesday, Wednesday or Thursday between 8:30 am and 4:30 pm or email: statewide.wagehour@alaska.gov or click here. You do not need to speak English to contact this office and make a claim.
Jeremy Applegate is the chief of Wage and Hour for the State of Alaska Department of Labor. The goal of today’s episode is to inform workers, particularly seasonal workers who may have never worked in Alaska before, of their rights. Important things to know up front: workers are entitled to a written contract at the start of their employment which specifies how much they will be paid, when they will be paid, and how they will be paid. Most workers in Alaska are entitled to the state minimum wage of $11.73 an hour, and if a worker works more than 8 hours in a single day or more than 40 hours in a single week, most are entitled to overtime payment.
If you believe that your rights as a worker have been violated call: 907-269-4900 Tuesday, Wednesday or Thursday between 8:30 am and 4:30 pm or email: statewide.wagehour@alaska.gov or click here. You do not need to speak English to contact this office and make a claim.
SEASONAL WORKERS RIGHTS
Andrew Gray:
Welcome to the East Anchorage Book Club. I'm your host, Andrew Gray. The purpose of this podcast is to tell the stories of Alaskans of interest and importance. Today, our guest is Jeremy Applegate, Chief of Wage and Hour for the State of Alaska Department of Labor. The goal of today's episode is to inform workers, particularly seasonal workers who may not have ever worked in Alaska before, of their rights.
Important things to know up front: workers are entitled to a written contract to start at their employment, which specifies how much they will be paid, when they will be paid and how they will be paid. Most workers in Alaska are entitled to the state minimum wage of $11.73 an hour, and if a worker works more than 8 hours in a single day or more than 40 hours in a single week, most are entitled to overtime pay.
If you believe that your rights as a worker have been violated, call 907 269 4900 Tuesday, Wednesday, or Thursday between 8:30am and 4:30pm or email statewide.wagehour@alaska.gov. You do not need to speak English to contact this office and make a claim.
Andrew Gray: Jeremy Applegate, welcome to the podcast. Can you tell us a little bit about yourself?
Jeremy Applegate: I am the Chief of Wage and Hour for the State of Alaska Department of Labor, Labor Standards and Safety Division.
Andrew Gray: Thank you so much for being here today. We're talking about seasonal workers. And when we're talking about the different types of folks who take seasonal worker jobs, who are those people in general?
Jeremy Applegate: Sometimes you have migrant labor that moves from one place to another looking for jobs and good employment opportunities. You may have college students taking summer jobs, especially in areas where they think that they can pick up a lot of hours in a season and earn money during their time away from college.
You have individuals coming from foreign countries on visa programs. You have people from U. S. territories coming in to try and make money here where it may not be as available in the locale that they live in. So yeah, it could be a number of different types of individuals and reasons that they come here.
Andrew Gray: And when we're talking about worker’s rights, do those groups of people have different rights, or do most seasonal workers have the same rights?
Jeremy Applegate: The way we enforce the laws here in the state of Alaska is based on the fact that the law requires that an employer adhere to the laws with regard to their employees.
So, if an individual is suffered or permitted to work, meaning that if they are doing work for a person and that employer employee relationship is established, those wage and hours laws apply to them. They could really come from anywhere. We get into human trafficking issues when, and we have seen it, where we have individuals who may be working here through dubious means or with expired visas or whatever, and then they aren't paid.
And then the employer says, “I'm going to report you to Homeland Security or whatever, if you try and get your money.” We take those threats to that individual much more seriously, because the fact that they're trying to use that person's immigration status against them so that they don't have to pay. Now you end up in a labor trafficking type situation.
Yeah, they apply to everyone. Now, what I can say is that some individuals may have other rights through other means. So, for instance the visa recipients that are working here, there's visa rules and protections for those individuals that may come along with their visa.
But the way we look at everyone here at the Department of Labor, Wage and Hour Office is that if you're doing work, the laws apply to you.
Andrew Gray: So to state that very explicitly, if a worker is here on an expired visa or was brought here without a visa from another country, those workers are entitled to protections.
They are entitled to be paid. They have rights as well. Even if their visa is expired or they don't have a visa at all. Is that correct?
Jeremy Applegate: Yes. If the work is done in the state of Alaska, those laws extend to them. Now, are there repercussions in other venues and whatever for those individuals? Yes, absolutely.
I've had calls from Homeland Security asking if a person could file a claim when they're being deported for a visa violation. And our answer is absolutely. We don't even care if they file from their foreign country, once they're back there. If they provided labor to someone here, and were supposed to be paid under our laws, then we're going to do our best to try and make sure that they get paid.
Andrew Gray: I'm going to say that one more time to make sure I understood correctly. If someone was here illegally, and they were deported back to their home country, but they had done work here, and they were not compensated for the work they did here, once they're back in their home country, they could still file a claim to get paid for the work that they did do, even if they didn't have a visa or their visa was expired when they were doing that work.
Jeremy Applegate: And the reason that is because regardless of their legality or status here in the United States, the laws are engaged with regard to labor.
That's what we'd be looking at. Most often that doesn't come up. More often what you're looking at is somebody who is here under legal circumstances, ends up going back to their home country and never receives a final paycheck.
We had a gentleman, I believe from Ukraine, that was working for a company up here. He didn't get his final paycheck mailed to him and so he filed a claim from Ukraine. We did our best to get his wages and then when we recovered them, sent an expensive envelope to Ukraine with his money.
Andrew Gray: What types of jobs are most seasonal workers doing in Alaska?
Jeremy Applegate: Generally you're going to find them in the fishing industry. That would be one such area. Sometimes you'll find them working for lodges. That's another seasonal thing. But you could also find them working in other capacities. Rides at fairs and festivals, working for restaurants and that kind of thing that are trying to bolster the number of people that they have working there for the summer season. Construction is another one.
Basically any industry that's essentially seasonal you'll probably find, those seasonal workers.
Andrew Gray: Are there any workers that are most at risk from having their rights violated?
Is it riskier to be one of those people traveling around with a fair? As opposed to working at one particular fish processing plant or working out on a boat?
Jeremy Applegate: No, I would say because there's great employers in every industry and then they're shady employers in every industry.
But what I can say is that the background of an individual is more likely to be the trigger for those things because the shadier employers are going to be targeting specific types of people or people in specific situations.
Things that I can point out are people who speak English as a second language primarily because they're less likely to understand the laws within the jurisdiction that they're in. And they're less likely to communicate when it appears that a law has been violated or they've been victimized.
They're less likely to be able to communicate those problems or to know where and how to communicate those problems. Plus, they may have come from a place where the activities that the employer is engaging in, while unlawful in the United States, may be an accepted or common practice where they're from.
Additionally, you have people of lower education, people coming from lower income sectors and people who are in desperate situations. People trying to pick up day labor or people who have clear housing issues, or substance abuse issues.
Substance abuse issues seems to be one that we're seeing a bit more of because of the opioid crisis, where it's like, “Are they going to believe me, the business owner, or are they going to believe you, the drug addict?” and then that person feels he's got a point. They're not going to believe me, and we try to overcome that. And we look at everything based on the factors that come into our office. We don't care what your mental state is or whatever.
We've had a couple individuals that have come through our office that clearly have some cognitive issues going on, and they have come back to us on multiple occasions, having not been paid by more than one employer, and after our investigation, it turns out that they actually were owed money.
So if we were to just look at those individuals and be like, “Oh, this person is a little bit different, a little bit crazy or whatever. Can we really believe them?” That's not what we look at. What we look at are the facts of the situation. You file your claim, you state your case, we look into it equally and then go from there.
Andrew Gray: If a worker does not speak English, how can they report a potential violation?
Jeremy Applegate: Anybody can come into our office. They don't need to speak a single word of English. We have interpreter services that we can use. And so if someone comes into our office, we've actually got a document that we can hand to them simply says, “I speak” and then go through a list of languages, written in their language, to identify what language it is they speak. We will then get an interpreter on the phone, figure out why they're in our office, and see if there's anything we can do to help them.
Andrew Gray: Is it possible for somebody who's in a remote location to call your office if they don't speak English?
Jeremy Applegate: Absolutely. It does raise a little bit of an extra level of difficulty there in trying to figure out what language they speak. Some you can tell. Spanish is pretty easy to tell if you've lived in the United States for any period of time.
But, there are other dialects where it's difficult to figure out what it is. But usually they can at least get out like, you know, Chinese. Well, then now we have to figure out if it's Mandarin, Cantonese, whatever.
But I've never run into a situation where we couldn't get over that initial hurdle and start talking to them through an interpreter.
Andrew Gray: What are the most common violations of rights that get referred to your office?
Jeremy Applegate: Let's go with five most common things. There's a lot of issues, but The Alaska Wage and Hour Act covers minimum wage and overtime. That's our bread and butter here. Those are the claims that we take. Nonpayment of minimum wage could be that somebody's been paid less than the minimum wage, $3.00 an hour or some negotiated amount.
Or simply nonpayment of wages. Another issue that comes into our office a lot is the nonpayment of overtime. That could be for a couple of different reasons. One, we get a lot of employers that simply say, I just don't pay overtime. That's not really how that works.
Andrew Gray: Let's break that down. Can we say how much is minimum wage in Alaska right now?
Jeremy Applegate: Currently $11.73.
Andrew Gray: Everyone's entitled to $11 and 73 cents regardless of your status.
Jeremy Applegate: Not entirely. Most people are entitled to at least the minimum wage. However, there are certain exemptions out there for persons, say fisher persons, or involved in aquaculture or in agriculture, are not subject to minimum wage and overtime laws. So there's a list of exemptions out there for individuals where it's not applicable. But by and large, most people are subject to those.
You also have a very common exemption for minors who work less than 30 hours per week. They can be paid as low as the federal minimum wage but once they hit that 30 hours, then all of their hours are paid at the state minimum wage.
Andrew Gray: What's the federal minimum wage?
Jeremy Applegate: $7.25 per hour.
Andrew Gray: So if someone's listening to this and their employer has told them that they don't have to be paid minimum wage, it doesn't hurt to call your office and verify that they are indeed not entitled to minimum wage.
Jeremy Applegate: Correct. And also, a lot of times those conversations just really need to start with the employer. If the employer says, I don't pay overtime, you go, “Why is that? Is this position exempt from overtime?” One common exemption in the state of Alaska is for small businesses.
If an employer has less than four employees, they don't have to pay state overtime. Now, they still have to pay the federal overtime, so they might say, “I don't pay daily overtime, I only pay the federal overtime.” That employer might be absolutely correct, and it might be just a simple conversation where the employee goes, “Oh, okay.”
And then if they doubt it, or they're like, “I need to understand that better,” that would be the time to call our office. But, they don't have to have that conversation. If it's uncomfortable for them, they could just call us.
Andrew Gray: Okay. So if we have someone listening who comes from a country where overtime is not a common practice. They're maybe not familiar with what that means to be paid overtime. Can you explain what overtime is and what are the overtime rules that would most likely apply to them as a seasonal worker in Alaska?
Jeremy Applegate: Absolutely. In the state of Alaska, we are what's considered a dual overtime state, meaning that we have daily overtime and weekly overtime.
So that means that, when we're talking about daily overtime, anything over eight hours in a day needs to be paid at a rate of time and a half, meaning your regular wages plus an additional half of those wages or half of that straight time pay. So time and a half.
Andrew Gray: What's the state minimum wage again?
Jeremy Applegate: $11.73 per hour.
Andrew Gray: The overtime rate would be $17 and 60 cents an hour.
They should be paid the state minimum wage of $11.76 an hour for the first eight hours, and then the additional four hours that they worked would be paid at the $17.60 an hour rate, correct?
Jeremy Applegate: Yes, that would be correct. So that would be for their additional time. Now, the thing to understand is that overtime is not an additional wage. You're not earning additional wages when you're going to overtime. What's happening is the employer is paying a penalty for having you work beyond eight hours.
The law actually states that an employer will not employ an employee more than eight hours in a day or 40 hours in a work week. But if they do, they will pay a penalty, which is known as overtime, of the additional half time for each additional hour that the employee works. The purpose of that is to force the employer to broaden their workforce and keep employees to a lesser amount, encouraging or incentivizing them to hire more employees So that you don't have employees overworked.
If you look back on posters and everything from the thirties when they were quite literally fighting about it in the streets, you would see the protesters holding signs that say, “Eight, eight and eight. Eight hours a day for sleep, eight hours a day for family, eight hours a day for work.”
The whole idea of that is to establish a home life balance and rest, because in occupations where people are not getting rest, things get dangerous. And then of course you have the family component and the home life balance.
Andrew Gray: So, you said it was a dual overtime policy, meaning also for the week. So if, for example, someone was working Monday through Saturday eight hours each day so they would be working 48 hours a week, that Saturday day of work with that whole day of work be time and a half.
Jeremy Applegate: Yes. So we covered the daily overtime, anything over eight hours a day. Work anything over 40 hours in a week? That's also over time. But one common thing that people are misunderstanding is that what you need to look at is that it's 40 straight time hours.
So, if an hour has already been paid earlier in the week, let's say you worked a nine-hour day, that additional hour is already paid as overtime. So, it's not going to go into that straight time calculation because it's already been paid as a premium overtime hour. So it's only 40 over 40 straight time hours. Yeah, depending on the situation and how the math works out, basically in your example, if somebody has worked 48 hours in a week, they have a minimum of eight hours of overtime there at a minimum.
Andrew Gray: I'm going to ask one more question about that. Let's say, for example, that your employee is working 10 hour days and they've worked four 10 hour days. So for those four 10 hour days, they've worked their 40 hours, but eight of those hours were paid at time and a half because they were over eight hours in a single day.
So they have worked 40 hours. Eight of which were paid as overtime. I guess the question is on the fifth day, which of those hours on the fifth day, would they be paid overtime for?
Jeremy Applegate: So doing the math there, you've got 32 straight time hours in the week, which means you've got an additional eight hours that could be worked.
So on that day, if they don't work any more than eight hours. And that whole day is straight time. Got it.
Andrew Gray: If they were being paid minimum wage at $11.73, then they would be paid $11 and 73 cents the first 8 hours of those first 4 days. The last 2 hours of those first 4 days would be paid at the $ 17.60 an hour rate.
And then that final day, the 5th day, 8 of those hours could be paid at the $11 and 73 cents an hour rate and without having to be paid any overtime.
Jeremy Applegate: yes.
Andrew Gray: Yep. Okay. I think that will give people a good idea about the way that overtime would work for them.
Are there any requirements in terms of lunch breaks or other types of breaks that folks doing seasonal work in Alaska should be aware of?
Jeremy Applegate: So for persons over the age of 18 in the state of Alaska, there are no specific break laws under the wage and hour laws, but for persons under the age of 18, if they are scheduled to work six hours or more in a day, for every six hours that they're working, they're entitled to a full 30 minute break.
That break should not happen within the first hour and a half of work. It must occur before the start of the fifth hour, so that there's some time in the middle of their shift when they're getting a full 30-minute break. Now, that doesn't have to be a paid break, but the employer does have to give them that break, and that break should be recorded, so that the employer can demonstrate the length of their break.
If, let's say, that minor took a 15-minute break, and then their manager called them up to work to help a customer, and then said, “Go sit back down and continue your break.” That is not a full 30-minute break. That is a 15-minute break and then whatever they've added on to that. The employee is still entitled to a full 30-minute break.
And for the employer, if they do not give those breaks, that is a violation equivalent to the payment of a minimum wage hour. So for each missed break, is a fine of $11.73 to the employee.
Andrew Gray: That only applies to folks under the age of 18.
Jeremy Applegate: Only persons under the age of 18 that are scheduled to work six or more hours in a day. If that employee was scheduled to work four hours, they're not entitled to a break.
Now let's talk about adults because I said that there is no break law in the state of Alaska for adults. There are two things you need to pay attention to there. And one is that if an employer gives an employee a break, they cannot require that employee to clock out unless that break is 20 minutes or longer. If that break is shorter than 20 minutes, that is paid time.
Now, the second thing to pay attention to with breaks for adults is that except for a few exceptions an employer is not required to give them. There are a few industry-specific standards under other law that may require breaks. The Transportation Safety Administration, for instance, may require long haul truck drivers to be off the road for a certain amount of time before they can get back on the road. Airplane pilots need to be on downtime for a certain amount of time before they can get back in the cockpit of an aircraft.
There are specific industry standards, but for general industry in the state of Alaska, over 18, there are no break laws.
Andrew Gray: Is there any requirement that an employer in Alaska give an employee a day off.
Jeremy Applegate: No, except again for minors. All minors in the state of Alaska must have at least one day off per week.
For adults, they could work seven days a week if their employer demands it. Now, that being said with all of these things, the employee has a right to say no. Is there a repercussion for saying no? Sure. The employer may terminate you if you refuse to work on a day or refuse to work out the rest of the day or whatever.
But an employer cannot force you to work if you say, “Look, I'm not coming in on this day.” They cannot say we're going to have you brought in, we're going to have the police come and get you and make you work. Those threats are made. And again, we get back to human trafficking and that sort of thing.
Every employee has a right to say no, but there are, you know, contractual situations that can have consequences when an employee decides not to adhere to what their employer is requesting of them.
Andrew Gray: That brings up some questions. So if you're working in a remote location where it's not possible for you to provide your own transportation away from the job site, and you're being asked to work seven days a week and you decide that you don't want to work seven days a week anymore, and you're not willing to do it. Do you have any right to be taken away from the job site to leave?
Jeremy Applegate: Yes. That gets into people's right to return transportation. If an employer furnishes or finances or agrees to furnish or finance transportation from the point of hire to the place the work is going to be performed on or after termination for a cause that's considered good and sufficient or beyond the control of the employee, that employer is obligated to return the employee back to that point of hire unless that employee is terminated for fighting, intoxication, or lying on their employment application.
The employee or our department needs to demand of the employer that return transportation occur within 45 days of the separation of employment in order to facilitate that return. If the employer cannot provide the employee that return transportation right away, then the employer needs to pay the employee $100 per day in subsistence payments until transportation is furnished for up to 10 days.
And where that would come into play is generally, the employee needs to be flown out of that lodge or whatever, but inclement weather doesn't allow it. And the employer is refusing to provide housing and food for the former employee while they're stuck in that situation.
The $100 is meant to provide for them during that time. Usually, you're not going to see that from lodges, because the lodge doesn't want some starving person sleeping out on their lawn, but you will find it in fish processing facilities or industrial sites around the state where the employee has other avenues to get food and lodging and they're just waiting on that flight out.
Andrew Gray: So to make sure I understand that if an employee at, for example, a remote fish processing plant where there's no way to drive in or out of that particular area, you have to go on a boat or a plane.
And they quit their job for some reason perhaps because the work is too difficult, it's too many hours, it's too many days in a row, and they quit. They're still entitled to transportation away from that facility and they're entitled to $100 per day until that transportation is provided up to 10 days, is that correct?
Jeremy Applegate: Yeah, to be specific, let me just read from the law for you. Because these things can get complicated, and I don't want to mislead any of the listeners. The termination by an employer of an employee who falls within the purview of the statutes we're talking about here during the term of the contract of employment is considered a cause good and sufficient beyond the control of the employee.
As phrased in the statute regarding return transportation, and it poses upon the employer the obligation to provide return transportation except if the reason for termination is falsification of the employment application, intoxication, fighting, or, and I missed this one when I was speaking about it before, an unexcused absence for duties of more than three consecutive scheduled work days.
Voluntary termination by an employee falls within the purview of the statute series that we're talking about and does not obligate the employer to provide return transportation unless the employee terminates because of misrepresentation of wages, working hours, lodging, or other conditions of employment, or working conditions, or the employer provided lodging that is unsafe and unhealthy, the Labor Standards and Safe Division will accept the employer's finding of termination for the intoxication unless the employee e furnishes evidence that demonstrates that the employee was not intoxicated during the incident.
That was the basis for the termination by the employer, but we always encourage employers to write down exactly why it is they believe the employee was intoxicated because we're not the only game in town here and the employee may go back and sue the employer. So we're like, “Look, if you're terminating the employee for one of these reasons, really, I would be prepared to defend yourself because in one venue or another it may be questioned.”
Andrew Gray: So to get back to the question of pay, what we've heard is that some employers will take advantage of workers by deducting wages, withholding fees from paychecks, and not really explaining to the employee what the purpose of the withholdings are, what the fees are for. Can you talk a little bit about that and what a worker could do to avoid having unnecessary withholdings or fees taken out of their paychecks?
Jeremy Applegate: Sure. When we look at those things as lawful deductions, unlawful deductions, and then deductions that are authorized by the employee. So let's talk about each category. Lawful deductions are things like your taxes, your unemployment, security contribution and so on. In addition to that, you have things like court orders child support. They may have a writ from the child support agency that says, “You're going to take this out of the employee's paycheck.”
One common thing is when employees are receiving tips and the employer reduces their wages based on the tips. Some employers don't do that as they should, and they are probably running afoul of IRS laws. Then an employee finds this employer is doing it right, and they go, “How come I took all my tips home, but how come my paycheck came out to almost 0? How much tips did you get?”
Because chances are, your employer is accounting for those tips as earnings and has taken your wages down quite considerably or to maybe even zero. Those are the kind of lawful deductions that we would see, and they are perfectly legal.
Does that mean that the employer is taking them out in the correct amount? Not necessarily. It's still a lawful deduction as far as our enforcement is concerned, but that's where you settle up on your taxes at the end of the year. It would be good to talk to a tax professional if you believe that they were taking out too much. But those are those lawful deductions.
Unlawful deductions, things such as taking money out of an employee's check for a bounced check by a customer, for damage or breakage costs or for cash register shortages. Those sorts of things, a whole list. I'm not going to go through all of them, but if you have questions about it, feel free to call our office.
But those sorts of things are strictly prohibited from being taken out of the employee's paycheck. Now, that's where we get to authorized deductions from the employee's paycheck, those things that have been authorized by an employee. You'll find that there is a caveat or an asterisk next to the things about the damage and breaking, breakage costs and the loss and missing and stolen items.
If an employee puts in writing that they did steal or take those items, or that they intentionally damaged those items that belong to the employer, they can enter into an agreement to have the employer take those out of their paycheck. For instance, the angry dishwasher that slams down a stack of plates because he was just really upset at the server or whatever.
The employer might be generous and say, look, that was unacceptable activity. You clearly intentionally broke those plates. Would you like to pay for those plates? And then the employee goes, “Yeah I'm sorry, my bad lapse in judgment.” They can work on that agreement.
You've also got other authorized deductions out of an employee's paycheck, the most common would be insurance. I want my employer to take money out of my check in order to participate in the employer's insurance plan, that would be something where they have to get in writing signed by the employee to take that out.
Other common deductions that you may find are room and board deductions. And that is very common, say, in the fishing industry and in seasonal employment, where an employer may charge an employee for room and board where the room and board is customarily furnished, where there is a written agreement between the employer and employee to take that deduction out of the employee's paycheck, and where the employee has the option of not taking that housing from the employer when they have other suitable options.
And when that happens, that agreement would be entered into if the employer's deduction from the employee's wages would affect the employee's minimum wage. It is going to take the employee below minimum wage for any hours worked.
That is where this would come into play. And there is a maximum amount that can be taken out of the employee's paycheck per day. And that is $20 when that's engaged.
Andrew Gray: Let me just make sure if the employee is getting paid minimum wage, then the maximum that can be taken out for room and board is $20.
Jeremy Applegate: For day rent.
Andrew Gray: Okay, that's really important because I've heard of folks, especially in remote locations where there really is no other option, need to stay in employee housing because there's no other housing available. As long as they were being paid more than minimum wage, then the employer can basically set the price of that bed per night at whatever the employer feels is reasonable. The employee really can't challenge it. They have no other option. I don't know. Are there any rights there?
Jeremy Applegate: So with regard to room and board deductions where the minimum wage is not engaged, let's say somebody is earning $30 per hour and the employer wants to charge $15, $20, whatever a day.
The room and board laws are not engaged in that instance. And the reason is because we're talking about contractual wages, not the statutorily required minimum wage. The minimum wage is by statute, everybody gets at least $11.73. Most people get at least $11.73 per hour.
Anything above the minimum wage is what's considered contractual. That's a negotiated amount in your contract. And if it's only taking from those contractual wages, and not touching that statutorily mandated amount of $11.73 then the room and board law isn't engaged there.
Andrew Gray: So you've just stated several times that it would need to be part of a written contract that the employee would need to agree to withholding. For health insurance, for example. We've already mentioned that some employees don't speak English or don't speak very good English. Is there any entitlement to have a contract in a language that the employee can understand?
Jeremy Applegate: No, under Alaska's wage and hour laws, there are no responsibilities to have it in a specific language. That being said, every employee in the state of Alaska is entitled to a written hiring agreement that they should be receiving before they start work. And that hiring agreement should cover three basic things: When the employee is going to be paid, where the employee is going to be paid, and how much the employee is going to be paid.
When we talk about when the employee is going to be paid, that's the employee setting up their payment schedule. Are you going to be paid once a week, once biweekly, or every other week? Are you going to be paid once a month? The employer cannot establish a schedule that is anything longer than once per month. Every employee is entitled to be paid for the work that they perform at least once per month.
That's something that does happen with seasonal employees, especially in lodges and guiding businesses, where they go, “You're at the lodge, you don't need money, don't worry, we'll pay you at the end of the season.”
No, you have to pay that employee at least once per month, and if the season is three months long, then we would expect at least three pay periods within that timeframe.
Andrew Gray: When it comes to being paid, particularly, I'm thinking of folks who might be on a H-2B Visa who maybe don't have an American Bank account. How are these workers generally paid? And what do workers do with their checks, or how do they get access to their earnings?
Jeremy Applegate: So there's four primary ways that people get paid and that would be cash, check, direct deposit if they do have a bank account, or pay card, which is becoming more common.
But in all those instances, the money has to be legal tender of the United States.
Bartering, providing an employee payment in tires, like whatever it is, those things would be unlawful. The employer has to provide those things in legal tender of the United States. We get a lot of questions about if an employer pay cash.
Absolutely, they can pay you cash. A lot of people equate that to under the table payment and under the table payment is, as far as we're concerned, legal. As long as you're getting all the money you're entitled to, you're good. Now, are there problems on the other side with the IRS? Yeah, probably. That's not our issue to deal with.
Andrew Gray: Just to be clear. You can be paid in cash. That's legal. You could be paid with a check. You could have direct deposit to a bank account. However, I'm thinking for some workers, that may be challenging, it would depend on the bank.
Jeremy Applegate: And I couldn't speak to the banking laws in the United States about how easy it is for somebody from a foreign country to set up a bank account here in the United States which may be difficult for them.
And so oftentimes those individuals are probably going to end up with either a pay card, cash, or a check. And then when they get that check, they would have to find a place that would cash it, whether it be a check cashing place, a Walmart, or a bank. Usually for those individuals, if they go to the bank that issues the check, if it's on a Wells Fargo check and you take it into Wells Fargo, they should be able to cash that for you.
An employee, when being paid, should be able to receive all of their pay without fee if they take it to the institution where the check has been issued. So the employee should not have to pay a fee to get their money.
Getting your money out of an ATM without an ATM fee. That's not what we're talking about there. If you opt to go to a check cashing place, that is going to charge you to cash the check. That's not what we're talking about. But the employee should be able to take their check, go into a bank and have it deposited without having to pay essentially to receive their payment.
I haven't seen that in a long time, but there used to be banks up here that would charge a fee. And so employers would have to call and say, look, reverse those charges back to me. Give the employee the face value of that check.
Andrew Gray: Gotcha. As far as working a job, a seasonal job, are there any particular safety measures that an employee is entitled to? Anything that you've seen as a potential violation where an employer may be asking an employee to do something that's unsafe. Is there any protection there?
Jeremy Applegate: Yeah, so I will give a shout out to Alaska Occupational Safety and Health specifically if anybody has questions regarding safety requirements in the workplace, they should contact them. What I can tell you is that every employer needs to train employees on the equipment that they will be using.
Andrew Gray: I have three more questions. Number one, let's say that you have not quit your job, not been fired for any reason, you've worked the entire season, it's the end of the season, you're at a remote location, what is the employer required to do as far as returning you home?
Jeremy Applegate: At the end of the season, when the employment contract is up. The employer needs to return the employee to the point of hire, not the employee point of recruitment, not home, home could be Puerto Rico.
Let's say it's a fish processor that's based out of Seattle. You get yourself to Seattle, you come in, you sign your hiring paperwork. They will put you on a plane out to Naknek or Dillingham or Unalaska, wherever it may be. The employer would be responsible for getting the employee back to Seattle or a mutually agreed upon location. For instance, maybe the employee comes up to Seattle, gets flown out to Dillingham, the season ends, and the employee goes, “You know what? I like Alaska. Could you fly me to Anchorage instead of flying me to Seattle?” They can come into a mutual agreement to fly that employee to Anchorage, and then that employee can go off and try and find another job here in the great state of Alaska, but yeah, they are responsible for the return of transportation.
Andrew Gray: And let's say, using the Seattle example, your point of hire is Seattle. You made your way to Seattle. The employer took you to the remote location. You worked for the whole season, and then they're returning you to Seattle. Can they deduct the price of that plane ticket from your pay? Or are they required to pay for your flight back to Seattle back to the point of hire?
Jeremy Applegate: Going back to what we discussed earlier in this conversation with regard to return to managed transportation, if the employer furnished, financed, or agreed to furnish or finance the transportation from the point of hire to that other place, that's when they become responsible for returning the employee back to the point of hire. If you, as the employee, flew yourself from wherever to that place, they are not on the hook for returning you back. That's on you.
Andrew Gray: We heard that some employers will tell employees that their final paycheck will be mailed to them. Is that something you've heard of? And is that a common practice? And is that okay?
Jeremy Applegate: Yeah, so let's go back to what I started to talk about with hiring agreements: when, where, and how much. We talked about when, establishing a payment schedule for the employee. How much the employee is going to be paid is identifying what their hourly rate is. How they're going to be paid, if they're going to be paid on a commission basis, piece rate basis, hourly basis, whatever it may be.
Then there's where the employee is going to be paid. Okay. They have to establish where the employee is going to receive payment when they do that, they'll usually say, look, you can pick up your paycheck every two weeks or whatever at the place of business. We actually encourage employers to put into their hiring agreement potentially separate language with regard to the employee’s final paycheck.
Mainly as a protection for staff in those establishments, because oftentimes employees don't quit under the best of circumstances. So the employer will determine that, “Okay, what we need to do here is say for the final paycheck, it will be mailed to the last known address we have on file for you. Please keep us updated on your last known address. That way, not only can we send your final paycheck, we can also send your W 2 at the end of the year and so on.”
It is common practice for employers oftentimes to do a final paycheck by mail. Both parties can come to a mutual agreement to an alternative payment site.
Let's say I'm going off to college. I go to my employer. “I'm not going to be at that address. Would it be possible for you to have my check available for me to pick up?” The employer goes, “Yeah, not a problem. Come pick it up on Friday.”
Great. We have it all set. But what really needs to be paid attention to with regard to final paychecks, is when an employee self terminates or quits or does some sort of job abandonment, like if the employee quits or leaves under their own volition, the employer is offering work and the employee refuses to do it or refuses to show up.
At that point, if the employee has quit their job, they need to be paid by the next scheduled payday as identified in that hiring agreement. If the employer terminates the relationship, the employee is to be paid within three business days, not to include weekends, holidays, or the day of the termination.
Now, that being said, all of the things that are in those hiring agreements are negotiable at the point of hire, at the time of hire.
And we do find with lodges and guides and that sort of thing that, the employee may be leaving the place of business and the employer says, “Go ahead, get on the airplane. Here's 300 bucks or whatever for your flight and everything. The checks in the mail, when you get back to your house, watch your mail. I'm sure your paycheck will be there” and then the paycheck never comes.
I would encourage employees to look at their hiring agreement up front. If they have suspicions that's the kind of thing that could happen, then they most certainly should take it up at the time that they're getting those hiring agreements sorted out. Because it's essentially a contract between the parties. If you don't get paid by your employer, or you're underpaid by your employer currently, if it's a minimum wage or overtime violation or potential minimum wage and overtime violation, it'd be good to get in contact with our office, even if it's not a minimum wage and overtime violation.
You might want to get in contact with our office. We may not take a claim for the matter, but we may be able to make a courtesy call or otherwise engage with the employer to try and get you paid, or at least give you ideas on how to go after your money in a way that's going to hopefully be fruitful, like small claims court, hiring an attorney, and so on.
Andrew Gray: And that is a perfect segue to, if somebody who is listening believes that a violation has occurred any of these things, not getting paid properly, having too much money taken out, too many charges any violation how do they contact you to ask about it?
Jeremy Applegate: Two ways. You can email us at statewide.wagehour@alaska.gov, or you can call our office at (907) 269-4900. Tuesday through Thursday. We have an investigator on call each day to answer questions and direct people.
Andrew Gray: And that’s between 8:30 and 4:30 PM.
Jeremy Applegate: And we have no wrong door. If you're unsure, feel free to call our office if we find out that, maybe you're better in the hands of workers' compensation or occupational safety and health, we'll direct you to where to go. When in doubt, go ahead and reach out and call us and we'll hopefully be able to get you into the hands of the people that can help you.
We're all state of Alaska. We're all, partners in making sure that the wage earners in the state of Alaska are looked after and we'll direct you to the right place. If you have a wage issue a deduction issue whatever with regard to wages paid for hours worked, reach out to our office, child labor issues, reach out to our office, and we'll be we'll be happy to discuss the matter with you.
Andrew Gray: Last thing, is there anything that we haven't covered today that you think people who are doing seasonal work in Alaska need to know?
Jeremy Applegate: Yes. The two golden rules that I put out there for everyone are one: always have a written hiring agreement before you start work, indicating when, where, and how much you'll be paid.
And two, keep an accurate record of the daily and weekly hours that you worked separately from your employer. What that means is you're keeping your own log of the record, of the hours that you have worked. So that if records are needed in the case of an investigation or a lawsuit or whatever, you have those records to rely on.
Employers, under the law, are required to keep those records. However, oftentimes they don't. Or they manipulate those records or falsify those records. So if you have your own records to rely on, that gives you a couple of things. It gives you evidence to pursue wages if you weren't paid everything you believe you were supposed to be paid.
Also, it allows you to take your paycheck stub, which you're required to be receiving here in the state of Alaska, compare the hours and overtime that were on that paycheck stub, to the hours that you have tracked for yourself, and make sure that you're receiving all your wages.
I had a colleague here that was another wage and hour investigator in her time with our office over 10 years. No less than three times did she have to go to payroll to get hours corrected. And if my office can screw up your timecard, anybody can screw it up. It happens. And not every violation or every nonpayment issue is malfeasance on the part of the employer. Mistakes happen. Numbers get mixed around when people are typing them into computers.
Things happen with people's paychecks. The first thing people really need to do in most cases is simply go to the employer and say, “Hey, my paycheck doesn't look right. Could you explain how we get to this number on here?” They might explain a deduction. They might explain, “Oh, the hours that we were looking at were this. Are these incorrect?” And if you do have that record of hours for yourself, you have a lot better chance of getting those things corrected easily rather than going through some other route or not getting them corrected at all.
And one way, especially now that we all have smartphones, all we have to do is take out that smartphone, open our camera app, take a picture of our timecard as soon as we clock in. Take a picture of the point of sale system when we clock in. Whatever means your employer is using to keep track of your hours, take a photo of it every single time you clock in, and every single time you clock out, and boom, you've got your own record of hours electronically stored for you.
Save those pictures somewhere. If you ever need them, you've got them. It's super simple.
Andrew Gray: One last thing. So let's say that you are working here in Alaska. You do not have a visa and you're from another country and maybe you're not permitted to be working here, but you are. And you believe that you're not being paid fairly.
If they contact you, are they at risk of being arrested or deported for reporting the payment violation that's occurred?
Jeremy Applegate: No, we are not interested in scaring people away from standing up for their rights by threatening them with some sort of deportation should they come into our office. We are going to do our best to look at the wage and hour violation.
However, there are other organizations out there that can communicate on your behalf if that's something you're afraid of. It's going to be scary for anybody in those sorts of situations to reach out to a governmental agency. I can give a shout out to places like Catholic Social Services does a lot of help with immigration issues.
The Alaska Institute for Justice also does a lot of immigration work. Those organizations not only might be able to help you address communicating with offices like ours or the U. S. Department of Labor but they might be able to help you with your immigration situation.
The people we've come in contact with in those situations are generally not people who have gotten here by sneaking across the border and finding work illegally. More often people are in some sort of weird dubious visa situation, and they're really unclear about what they can or cannot do. Or maybe they did something like work and then realized later on that they weren't supposed to.
So getting good quality legal or immigration assistance, we don't deal with that, but those different organizations do, and they may be a helpful tool in helping you communicate with the agencies. If you've been assaulted or whatever, and you don't know what or who to go to, some of those community organizations can be very helpful.
Andrew Gray: Jeremy Applegate, thank you so much for being on the show today. This was very helpful.
Jeremy Applegate: Not a problem. We're always happy to get the information out there and help people. If they just remember to call 907 269 4900. And Tuesday through Thursday we've always got somebody available to help.
Thanks so much for being on the show.
Thanks.
Thank you, listeners. If you like what you heard, please subscribe, rate, and review us. To contact me, email rep.andrew.gray@akleg.gov or call 907 465 4940.