Help Wanted: Seek variance to extend workweek

Americans spent more on autos, electronics and building Americans spent more on autos, electronics and building supplies in November, and shopped more frequently online. The data from the U.S. Commerce Department suggests the economy is rebounding from disruptions caused by superstorm Sandy. (Oct. 10. 2012) Photo Credit: Bloomberg News

advertisement | advertise on newsday

Carrie Mason-Draffen Newsday columnist Carrie Mason Draffen

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

DEAR CARRIE: We run a local lumberyard that deals mostly with contractors. Normally, we open Monday through Friday and a half-day on Saturday. Since the storm, however, we have been opening on Sundays for four to six hours. Are we breaking the law by making the employees work seven days a week? The workers are not complaining because they love the overtime pay. But we want to make sure we aren't violating labor law. -- Need to KnowDEAR NEED: Well, I have good news and bad. The bad news is that since you are considered a "mercantile establishment," state labor law requires you to give workers at least 24 consecutive hours of rest in each calendar week -- in other words, a full day off.

Here's the good news: You can request a variance for unusual circumstances.

"Section 161 [of state labor law] does allow for employers to request variances in hardship situations that are not expected to last for extended periods of time," the department said.

Given the circumstances, you may not have to pay a fee normally required when making a special request.

"Although we usually charge a fee for variances," the department said, "we would certainly look at waiving it in situations arising around storm damage issues."

When deciding to grant a variance or not, the department takes into account whether the employees are voluntarily giving up their seventh day or are being forced to work, the department said. Sounds as if your employees welcome the chance to earn extra income.

And here's more good news from the department.

advertisement | advertise on newsday

"We would not investigate this unless we received a complaint, which is highly unlikely," it said.

It advises you to request a variance, nonetheless.

"The employer can request the variance if he wants to play it by the book," the department said.

To obtain a variance, email your name, address and phone number with a request to LSCPInfo@labor.state.ny.us.

DEAR CARRIE: I am a psychotherapist in private practice. I have rented office space for about 12 years in a co-op building. I didn't earn any income for two weeks in the aftermath of superstorm Sandy because the building had no electricity or heat. I couldn't see clients in those circumstances. So I didn't earn enough money to cover my rent. I am wondering if any special unemployment-benefits programs exist for self-employed people like me.

-- Shrinking Pay

DEAR SHRINKING: You're in luck. The federal Disaster Unemployment Assistance (DUA) program provides some payments to eligible self-employed people who live or work in one of the federally declared disaster areas and lost income or work because of Sandy. Those areas include Nassau and Suffolk counties.

The state Labor Department administers the program. Self-employed people don't qualify for traditional unemployment benefits. So the special program is particularly important for that category of workers. Like the traditional unemployment program, the maximum benefit is $405 a week. That means that no matter how many days a self-employed person lost, if he or she earned at least $405 a week, the person wouldn't qualify for benefits for that week.

"DUA eligibility and benefit amounts are decided on an individual, case-by-case basis," the state Labor Department said. "The primary factor is whether the self-employed person . . . is performing less than their normal, full-time services and earning wages less than $405."

advertisement | advertise on newsday

DEAR CARRIE: In last week's article you stated that when exempt employees miss a full day for personal reasons, employers can deduct from their paid time off. What if an exempt employee leaves work early for personal reasons; can the employer deduct from paid time off if it's only a couple of hours? -- Whose Time?

DEAR WHOSE TIME: I checked with the U.S. Department of Labor, which says that this question comes up frequently regarding exempt employees, or those employees who fall into the executive, administrative, professional and outside-side sales categories.

While employers cannot dock the pay of exempt employees who miss a few hours of work, they can deduct the missed time from the workers' accrued paid time off. And even if the employees have exhausted their accrued paid time off, the employer still couldn't legally dock their pay for partial days. The employer could fire employees for repeatedly taking off a few hours, but the company couldn't dock their pay.

advertisement | advertise on newsday


For more on New York's day-of-rest law, go to http://bit.ly/Xttlo2

For more on the self-employed and disaster unemployment assistance, go to http://bit.ly/WgO5sS

You also may be interested in: