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BusinessColumnistsCarrie Mason-Draffen

Docked employee can’t be exempt from OT

Wage and overtime rules are different for exempt

Wage and overtime rules are different for exempt and nonexempt employees, according to labor laws. Exempt employees, for example, are not required to be paid overtime but cannot be docked for tardiness. Photo Credit: iStom

DEAR CARRIE: My wife teaches at a private day care whose pre-K classes are funded by New York City’s Universal Pre-K Program. She has a master’s degree and teaching certificate. Her contract stipulates a $50,000 salary and says that her workweek consists of 35 hours plus time for any school events that take place outside of normal working hours. Recently, the director decided to dock the pay of employees who arrive late. For being late twice for about 10 minutes each time, the director docked my wife $250! So despite not paying my wife overtime, the director docks her when she is tardy. Can you confirm that a teacher contracted through the city’s pre-K program is exempt and tell us whether the practice of reducing her pay for tardiness is legal? — Wife Docked, Hubby Steamed

DEAR WIFE DOCKED: The director needs to hit the books to brush up on labor laws. An employer can’t treat an employee as an exempt and nonexempt employee at the same time. If your wife is exempt, it is a no-no for the school to dock her pay when she misses less than a day. Exempt employees don’t have to be paid overtime. But once a company docks them for missing less than a day of work, that exemption is destroyed and the company has to pay them overtime when they work more than 40 hours a week.

It sounds as if your wife could be exempt, said Sheree Donath of Donath Law in Uniondale, who provided the following excerpt from the U.S. Department of Labor’s website.

“Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in the activity of imparting knowledge, and if they are employed and engaged in this activity as a teacher in an educational establishment. Exempt teachers include, but are not limited to, regular academic teachers; kindergarten or nursery school teachers . . . ”

Coverage under the Fair Labor Standards Act may extend to day care centers as “day care centers and preschools provide custodial, educational, or developmental services to preschool children to prepare them to enter elementary school grades,” the website further states.

“From the facts above, it seems that your wife falls within the above categories: She is a teacher working at a day care established as a preschool and is providing instruction and lessons to prepare the students for elementary school grades,” Donath said.

An employer can legally make deductions from exempt employees wages under certain circumstances, such as when they are absent from work for one or more full days because of personal reasons other than sickness or disability, Donath said.

Your question does not state whether the deductions represent the day care’s policy for lateness or if your wife is being targeted for some reason that may have to do with something other than lateness, Donath said. For instance, does she fall within a protected category based on her race, ethnicity, age, or a disability? Or before being docked for being late, did she raise safety concerns or object to wrongdoing?

“It is possible that your wife’s pay is being docked, not for lateness, but for an improper or an illegal reason,” she said.

Your wife should object to these deductions and she may want to seek help from the Labor Department or an experienced attorney.

That said, your wife should try to cure the lateness problem, she said.

“In almost all workplaces, lateness may result in disciplinary action, including termination of her employment, and continued lateness is cause for firing,” Donath said. “If she knows she is going to be late then she should reach out to the director or her supervisor in advance and notify that person. A simple communication with the people to whom she reports may prevent any disciplinary action being implemented.”

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