Graduation, without pay

Carrie Mason-Draffen

3:48 PM EST, February 29, 2008

DEAR CARRIE: I am an instructor at a private secondary school. In the past, graduations took place on a weeknight twice a year, and evening classes were canceled so we could attend.

We really have no choice but to attend and don't get paid for any extra time. That's more problematic now because the next graduation will take place on a Sunday, and once again we are required to be there. Can our employer require us to attend on a day off and not pay us?

- Forced Graduation

DEAR FORCED: Whether the school has to pay you depends on whether you are considered exempt or nonexempt, an issue that comes into play in so many workplace questions.

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That status determines whether you get paid for attending an after-hours training session, for overtime or for attending a graduation. If you qualify for a professional exemption, which teachers generally do, the school wouldn't have to pay you for the mandatory attendance.

"The answer lies in whether she meets the criteria," says Irv Miljoner, who heads the Long Island office of the U.S. Labor Department in Westbury.

Teachers who fall into the professional-exemption category have a college degree, and their primary duties require them to make use of that advanced knowledge, according to federal labor laws. And their primary duties have to be intellectual in nature and include a "consistent exercise of discretion and judgment."

Here are the four criteria for a professional exemption. They are from the Labor Department's Fact Sheet 17D.

--The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;

--The employee's primary duty must be the performance of work requiring advanced knowledge, defined as work that is predominantly intellectual in character and includes the consistent exercise of discretion and judgment;

-- The advanced knowledge must be in a field of science or learning.

-- The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. If all those criteria describe you, you are probably exempt.

"If 'instructor' means that she is a teacher and that is her primary duty and that she's not doing anything other than teaching as her primary duty, and she meets the other criteria for the professional exemption . . . then she would be exempt," Miljoner says.

So it looks as if you won't be paid for having to watch the pomp and circumstance.

For more information, go to Fact Sheet 17D at dol.gov/ esa/regs/compliance/whd/fairpay/fs17d_professional .pdf.

Or call the labor department at 516-338-1890 or 212-264-818.

DEAR CARRIE: I asked my boss for a raise. The amount she offered was so paltry I gave notice and left a week later. When I later asked for my vacation pay, the supervisor told me I wouldn't receive it because I had left the company. I was on the job 10 years and had earned three weeks of vacation. Can the company legally take back my earned vacation time?

-- Vacation Hang-up

DEAR VACATION: It all goes back to the company's vacation policy. If that policy says you forfeit such paid time off when you leave, you're out of luck.

So try to get a copy of the policy. And if you find that the company isn't honoring it, call the state Labor Department at 516-794-8195 or 212-775-3880.