Help Wanted: What constitutes overtime

Whether at a construction site or elsewhere, a Whether at a construction site or elsewhere, a workweek is defined as an unbroken period of 168 hours. In many cases, if an employee works more than 40 hours in a workweek, overtime pay is owed. Photo Credit: AP, 2012

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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 own a small construction-service company that provides laborers to work sites. Right now I have three people working. Our pay period is every two weeks, that is 80 hours. If a laborer works just 32 hours the first week and 48 hours the second week, is he paid straight time for the 80 hours or does he get 72 hours straight time and eight hours overtime? In other words, is overtime based on a pay period, or is it based solely on a 40-hour week? -- Definition of OT?

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DEAR DEFINITION: Your confusion is understandable because of your bi-weekly pay period. But for purposes of overtime, each workweek stands alone. When an hourly employee works more than 40 hours in a workweek, the person must earn overtime for those extra hours. So in the examples you cited, the employee doesn't have to be paid overtime the first week but must receive premium pay for eight hours in the second week. Under federal law, overtime must be at least one and one-half times a worker's regular hourly rate.

Employers can establish their work weeks, said Irv Miljoner, who heads the Long Island office of the U.S. Labor Department. It doesn't have to be Monday through Friday. A workweek can have any beginning and end point as long as it's an unbroken period of 168 hours.

"But they have to be consistent," Miljoner said. "They can't manipulate it from week to week for purposes of evading the overtime requirement."

You are not alone in your confusion. Miljoner said the question is a common one. Hopefully, you now know when overtime kicks in.

DEAR CARRIE: My wife's employer pays her in two checks. One is a regular bi-weekly pay check and the other is a commission check. The payroll service her employer uses deducts federal and state taxes from her regular pay. It also deducts federal taxes from her commissions. But for some reason it doesn't take out state taxes from her commissions if those checks are under $600. This usually results in our owing New York State hundreds of dollars in taxes every year. I assumed that if employers withheld federal taxes, they also had to withhold state taxes, no matter the amount. Am I right? -- Taxing Issue

DEAR TAXING: I went to the source for an answer: The state Department of Taxation and Finance. It agreed that when employers deduct one tax, they usually deduct the other.

Your wife should ask her company or the payroll service to deduct all the taxes.

"Regardless of the amount of the income, if the individual wants to have New York State taxes withheld on her commission check, she should ask the employer or payroll processor to do so," the department said.

In fact she can help the process along by providing her employer or the payroll service a copy of the department's guidelines on how to tax supplemental wages such as commissions. Go to Newsday.com/business for the link.

If the problem still persists after she speaks with her employer, she should contact the department.

For more on deducting state taxes from commissions, go to http://bit.ly/X9905r. For contact information for the state Department of Taxation and Finance, go to http://bit.ly/Z08UQY.

UPDATE: Follow-up to the "Mysterious Claim," question last month in which a manager wondered whether her employer would have to pay unemployment benefits to an employee who failed to return from a bereavement leave and later filed for unemployment benefits. She wrote to say the company prevailed. Here is what she said:

"I just wanted to share with you the response we got from the Department of Labor. According to them, this employee quit his job without good cause, and no employment insurance benefits will be paid. Because he didn't contact his supervisor, his actions constitute job abandonment, which is voluntary quit. Thank you for your help!"

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