Averaging two weeks' hours to avoid OT a no-no

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A day care center's practice of totaling two

A day care center's practice of totaling two weeks' hours to avoid paying overtime breaks both federal and state labor laws. Photo Credit: iStock

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Carrie Mason-Draffen Newsday columnist Carrie Mason Draffen

Mason-Draffen, a business reporter, writes a column about workplace issues.

DEAR CARRIE: I'm writing on behalf of my daughter. She works at a day care and /pre-K school. She is paid every two weeks based on an hourly rate. She usually works 40 hours a week and is paid for 80 hours per pay period. On occasion she works more than 40 hours a week. But if she works fewer than 40 hours the following week, the boss won't pay her overtime because he bases overtime on anything that exceeds 80 hours. Is this legal? Even though she is paid every two weeks, isn't each week separate? Do we have any recourse? This has been going on for quite a while. -- Concerned Mom

DEAR CONCERNED: Your instincts are right. Despite the two-week pay period, every workweek stands alone, under both federal and state labor laws. So when she worked more than 40 hours a week, she should have earned one and one-half times her regular hourly rate for those extra hours.

This is such basic labor law and so clearly prohibited that it's hard to imagine an employer lacking such knowledge. Even though you're not an employer, you sensed that something was askew.

Here is what federal regulations say about the workweek and overtime:

"An employee's workweek is a fixed and regularly recurring period of 168 hours -- seven consecutive 24-hour periods. . . . Averaging of hours over two or more weeks is not permitted."

Your daughter should call the U.S. Labor Department at 516-338-1890 for information.

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DEAR CARRIE: In the past, our employer never cared how long our vacations were as long as we had accrued enough days to cover the requested time off. I have accumulated more than enough time to take my customary 12 days off in July. But this year, when I requested the time off, I was told that a new policy limits employees to 10 days at a time. We were never notified of this change. Can the company do this without letting us know? -- Legal Restrictions?

DEAR LEGAL: The new policy, though inconvenient, is legal as long as it doesn't shortchange you on the number of vacation days you have accrued. If the new policy doesn't shortchange you, the state Labor Department won't get too exercised, even though the company didn't notify you ahead of time.

Here is what the Labor Department said: "As long as the issue is when the vacation can be taken rather than a reduction in total accrued time, we wouldn't get involved."

Granted, employers that offer paid time off are supposed to give employees information about the company benefits policy ahead of time in writing or via a public posting. Most importantly, employers have to honor any accrued time employees have earned.

DEAR CARRIE: I work for a nonprofit, and we have no union. Recently we've gone through many changes regarding our benefits. But I am wondering if they were legal. If we have paperwork stating that certain benefits are "grandfathered in," can they be changed or eliminated altogether? -- Benefits Forever?

DEAR BENEFITS: Generally, companies that offer benefits are free to change their policies, especially absent a union contract. They have to give employees whatever they have already accrued, as I mentioned above. But going forward, companies can rewrite the terms of their benefits.

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