Help Wanted: Giving back pay for storm days

Cafeteria workers at a school district who got

Cafeteria workers at a school district who got five paid days off after superstorm Sandy now are being asked to work five days without pay. Can this be done? (Credit: iStock)

DEAR CARRIE: I work as a part-time, nonexempt food service worker in a school district. I work five hours a day. We were out of work for a week because of superstorm Sandy. Still, the district paid us for those days. But here's the punch line: We later had to work three days with no pay. And the Friday before Memorial Day and the Tuesday after Memorial Day we have to work with no pay. So we will end up giving back the storm pay. Is this considered correct policy? Also, during the days the district was closed, one co-worker was called in to clean out some ice cream and has been told she cannot get extra money for that time. She risked her life to come in because, remember, many traffic lights weren't working. Shouldn't she get paid for the time she worked? --  Miffed Lunch Lady

DEAR MIFFED: Although your employer extended a nice gesture by paying you for days you didn't work, the requirement that you work an equal number of days without pay is "problematic," on at least two levels, according to employment attorney Craig S. Roberts, a partner at Jackson Lewis in Melville.

First, since you are nonexempt, which generally means hourly, your employer has to pay you for all the hours you work, even if the district considers the unpaid days an even exchange for the storm pay, Roberts noted.

"Even if the superstorm Sandy pay was intended to be an advance against future wages, an employer cannot require an employee to work without pay to offset the outstanding balance," he said.

Secondly, by asking you to work without pay to recoup its money, your employer could be making what is tantamount to a wage deduction, Roberts said. Although recent changes to state labor law regarding deductions make it easier for employers to recoup salary advances, the regulations remain "quite restrictive regarding what deductions are allowed and the procedures under which allowable deductions may be taken," Roberts said.

The new provisions, for example, require employers to notify employees of the deductions ahead of time and to inform them about procedures for disputing the repayment amounts.

As to whether your co-worker who was called in should have earned extra money, that depends.

If the storm pay you received covered all the hours missed, then she doesn't have to be paid extra, Roberts said. But if the pay was a lump sum, regardless of hours worked, "then the employee should receive an additional day's pay," he said.

As for risking life and limb in the aftermath of Sandy, she might not qualify for extra pay.

"Unless there is a handbook policy or collective bargaining agreement that mandates hazard pay, then the employee does not have to be paid an enhanced rate of pay," Roberts said.

DEAR CARRIE: In the past we were able to extend our vacations by tacking on one or two days without pay. Our boss has now decided that this is no longer an option. Is this legal? -- Shorter Vacation

DEAR SHORTER: It is legal. Since labor laws don't mandate paid time off, like vacation days, employers can determine what their policies look like. If the company changes the policy for paid time off, however, it has to honor what you earned under the old policy.

For more on amendments to state wage-deduction regulations go to http://bit.ly/13iuv7E. For more on paid-time off and state labor law go to http://bit.ly/AkPTqT.