Sunday, January 17, 2010
posted under 15 Ways , Fair Labor Standards Act , furlough , Rosenstock , University of Illinois by Unit for Criticism
[Here is the second of the posts the Unit for Criticism has commissioned for its series, "15 Ways to Take Your Furlough," a discussion of the condition of higher education at University of Illinois and elsewhere]
Written by Bruce Rosenstock (Religious Studies/Program in Jewish Culture & Society)
Not since the summer after my junior year in college when I worked as an elevator operator in a classic downtown Chicago skyscraper (I called out “Dee-scending!” instead of “Going Down!” and “Ass-cending!” instead of “Going Up!,” much to my puerile delight) have I considered myself to be a wage laborer. But now, under the federal Fair Labor Standards Act it turns out that the day that I am furloughed I am, by a legal fiction, turned into a wage laborer.
A blog post by University of Wisconsin law professor David Trubek explains this fiction in a humorous way, but let me give a briefer, drier account. Our appointments as faculty members are as salaried employees, and as such we are not paid overtime for any work we do, no matter how many hours beyond 40 hours each week we may work. In order to furlough us for a day, it is necessary to pretend (here’s the legal fiction) that we are paid for the work we do as if we were wage laborers for the week in which our furlough day falls (see FLSA 29 CFR 541.710 b: “Deductions from the pay of an employee of a public agency for absences due to a budget-required furlough shall not disqualify the employee from being paid on a salary basis except in the workweek in which the furlough occurs and for which the employee's pay is accordingly reduced”).
Federal labor law requires that if we did in fact work on our furlough day, we would need to be compensated at the overtime rate of 1.5 times the regular rate of pay. Failure to be given this compensation could trigger an audit (all it takes is one disgruntled employee) by the Department of Labor. It is for this reason that our administrators are so adamant about making sure that WE DO NOT WORK on our furlough day, and that anyone under our supervision who is covered by the furlough MUST NOT BE PERMITTED to work.
Also, our administrators are aware of the following law: anyone on salary who makes less than $455 per week cannot be put on furlough without triggering a possible claim for ALL PRIOR WORK OVER 40 HRS./WK as overtime. That is at least one reason why they set a lower limit of $30,000 ($455 x 52 = $23,660) for the furlough, in order to be sure not to trigger this claim (which would also allow EVERYONE IN THE SAME EMPLOYMENT CATEGORY to make the same claim for overtime.)
So, now that I see myself as a (furloughed) wage laborer one week each pay period, what do I about it? I am not complaining, let me make that perfectly clear. I actually feel proud of this newfound identity. I am also quite thankful that this status is a legal fiction and that I remain a tenured professor after all. I know that there are many, many millions of people whose lives as wage laborers are truly precarious, and I am also aware that there are many millions of wage laborers who are not only furloughed, but unemployed. No, I am not complaining.
I am not complaining, but I also want to honor the law and the status of wage laborer which the law was and is designed to protect. The Fair Labor Standards Act, passed in 1938, is one of the great pieces of New Deal legislation. If I actually work on my furlough day but report myself as not working (and all faculty at UI will report the days that they select as the furlough days), I seem, at least in my own eyes, to be denigrating the law and acting in complicity with the administration who are fully aware that most faculty will not actually refrain from ALL ACADEMIC WORK (not just teaching class) that day. So, what do I do? Believe me, this situation has made me both angry and frustrated, not because of the loss of money, but because of the bind I am placed in.
I have decided to act in perfect consistency with the law, at least as I now understand it. I am not going to work. I am also going to do my best to take furlough days only on Friday, the one day I don’t have a class. But I also don’t want to waste my time twiddling my thumbs as I wait until 5:00 pm to pick up a book or turn on email. I recalled that for a long time I have felt guilty about ignoring requests from the social action chair at my synagogue for volunteers to help out at one of the community’s food banks. So, I thought, here is my opportunity. I called the synagogue and discovered that the social action committee no longer was doing its food bank volunteer program, but I learned from the administrator of the synagogue, Kate Meghji, that as part of an MBA in non-profit administration she is getting here at UI she has developed a database of all the non-profits in our area. It occurred to me that we might use that database to connect other faculty with volunteer opportunities. Kate offered to see if certain non-profits might not like to do a one-day volunteer activity that would bring together a group of faculty who might be willing to select that day as their furlough day.
So, I intend to work with Kate on this and dedicate at least one of my four furlough days to volunteering in the community. I am hoping that this might become an opportunity for collective action. I think if a number of faculty joined in this as a way to spend one or more furlough days, it would be a great way to get some positive publicity for us as we seek to do something to draw the attention of the citizens of the state to the budget problems holding up the disbursement of our appropriations. And perhaps our administrators, who need to take two furlough days every pay period and who must for legal reasons be very careful not to be seen working on those days, perhaps they might join with some of us in this collective action. I hope to be able to make more information available about possible volunteering activities in the near future. Anyone interested in helping or participating, feel free to contact me at email@example.com.