Help, our accrued time is being taken away

Carrie Mason-Draffen

1:02 PM EST, February 1, 2008

DEAR CARRIE: My colleagues and I are union employees at a large health care facility, which will soon have a new owner and a new benefits policy. Under that policy most of us will probably lose our accrued paid time off, in some cases as much as eight weeks.

Under the old rule, we could carry things like sick days and personal time over into the next year, and our shop stewards consistently told us that if we left the company, we would be paid for unused time. Now, neither one of those is an option. And because we're short staffed, it's hard to get permission to take time off. Is this legal? What can we do? -- PTO No Go

DEAR PTO: The answer hinges on your union contract.

"If the union thinks the employer is breaking the contract's provisions on paid leave time, it can pursue the employees' rights in arbitration," said Richard G. Kass, a partner at the Manhattan law firm Bond, Schoeneck & King.

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The union also could enter into talks with the company about the effects of the change of ownership, he added.

"Alternatively, the union has the right to negotiate with the employer over the effects of the takeover," Kass said, "and in the course of those negotiations, it can seek a payout for unused accrued leave time."

Individual employees can't pursue the grievance on their own unless the union contract provides them with such a right, he said.

DEAR CARRIE: Two years ago a sales company hired my daughter as a receptionist. She earned $12 an hour. About a month ago, her boss suggested she try sales because he thought she would do well. She took his advice -- but regrets it now. About three weeks into the new job, the company announced that it was taking away the sales employees' hourly salaries in favor of commission only. So this past week, she did not receive a paycheck. She made some sales, but will not see that money until the customer pays the company. That could take awhile. My questions are: Is it legal to hire someone as a salaried employee and then change them to commission only? And is she eligible for unemployment while she looks for a new job? -- Concerned mom

DEAR CONCERNED: Your letter deals with two important issues, one of which crosses into federal and state laws. That's the commission part.

I'll deal with the unemployment benefits first because it's the easiest. Generally, the state-administered unemployment-benefits program helps employees who have lost a job through no fault of their own.

But that rule has one big exception: If the terms of someone's employment change substantially, the person could quit and possibly qualify for unemployment benefits. Your daughter's new pay arrangement could well help her qualify.

She should call the department's unemployment benefits claims line at 888-209-8124 for more information.

As to the commission pay arrangement: Federal and state laws allow the employer to change her pay status to commission-only.

But that's not the end of the story. Because she is an inside sales employee, under federal and state law, the amount she's paid during a workweek has to equal at least $7.15 an hour, the state hourly minimum wage.

In addition, under state law, the company has to notify employees in writing about the change to commission-only pay, a Labor Department spokeswoman said. Until that notification is given, the company can't change the pay method. And it cannot apply the arrangement retroactively.

As for the frequency of pay: By law, commission sales people can be paid monthly. But the hourly pay rate for a single workweek must equal the New York minimum, which is higher than the federal minimum of $5.85 an hour.