DEAR CARRIE: I am the director of music in a church, where I also work as an organist. My contract details the Masses and services I am required to play during the year; it also says I am responsible for overseeing the music program, its employees and its volunteers.
My yearly salary is paid to me twice a month and has always been substantially less than the New York State threshold for an exempt employee, which I consider myself to be. I am, however, able to make extra money at my church by playing the organ for weddings and funerals. The church does not pay me for these extra services; I get paid the same day by the family members holding those events. The church maintains these extra payments bring me up to the legal threshold for exempt employees, sort of the way that tips bring a waiter up to minimum wage. When I add everything up at the end of the year, I often don't make the threshold. Is this legal? -- Sour Note
DEAR SOUR NOTE: If you are indeed an exempt employee, the church may have violated labor laws by not paying you the state minimum salary for exempt workers, which is $656.25 a week.
When it pays you below that threshold salary, you lose your exemption from overtime and minimum wage, and the church then has to pay you for all the hours you work, including the weddings and funerals.
Exempt workers, such as managers and other professionals, are exempt from overtime and even minimum wage. But in exchange for those breaks, employers have to guarantee the workers a minimum weekly salary, unless they miss a day for personal reasons.
Counting tips as wages doesn't sound legal because employees whose tips can be factored into their wages generally work in restaurants or hotels.
You should call the state Labor Department for more information at 516-794-8195 or 212-775-3880.
One important caveat: Since you have an individual contract, there is room to believe that you might be an independent contractor. If you are, labor laws don't cover you.
DEAR CARRIE: The hospital where I work recently installed a time clock that requires all personnel to clock in and out. I have a concern about rounding because I am not sure we are being paid for all the extra time we work. If you work overtime for less than a half-hour past your shift, does your employer have to pay you for all that time or can the company round up to avoid paying you for all the time you work? -- Time Bandits
DEAR TIME: Hourly workers have to be paid for all the hours they work, period. So time-clock rounding is permissible as long as it doesn't shortchange workers. If a company, for example, rounds up workers' start times to the nearest five or 15 minutes, then it needs do so at the end of the day so that hourly workers are paid for all the hours they work.
Here is what Section 785.48 (b) of Part 29 of the Code of Federal Regulations says about rounding:
"For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked."