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BusinessColumnistsCarrie Mason-Draffen

Employer says she must wait to be relieved but won’t pay OT

Hourly workers must be paid for all the

Hourly workers must be paid for all the time they work. Photo Credit: Getty Images/iStockphoto / designer491

DEAR CARRIE: I am an hourly worker in a mental health hospital. If my replacement doesn’t arrive at the end of my shift, I have to wait until the person shows up. Inevitably, I end up clocking out at about 8:15 p.m, instead of 8 p.m. But I don’t get paid for those extra 15 minutes. Can management force us to stay even though we’re not compensated? Incoming staff hangs out in the lobby instead of coming onto the unit. I resent being forced to stay, especially because I have another job after this shift. Management has sent out notices to all staff telling us to be on time, but many co-workers disregard the directive. I understand that for patients’ safety, I must wait to be relieved. But I find it annoying. I would, at least, like to be paid for my trouble. — Unpaid Wait

 

DEAR UNPAID: Hourly workers have to be paid for all the time they work. Yes, your employer can require you to stay until you are relieved. But the company must also pay you for the extra time. It’s Labor Law 101. Those 15 minutes add up over time, and before you know it you’ve worked not minutes, but hours of unpaid extra time. You perform your job conscientiously by waiting. Now your company needs to follow your example and pay you for that time.

 

DEAR CARRIE: My son has worked for a fairly large company for many years. He works Tuesday through Saturday, and one of his days off is Monday, which is often the day of the week on which a federal holiday falls. Is he entitled to extra pay for holiday Mondays or an additional floater day off? — Monday, Monday

 

DEAR MONDAY: Since your son doesn’t work on Mondays, his employer can determine how his pay is handled when a holiday falls on that day, unless a union contract or employment agreement comes into play. Absent those, your son’s employer can decide whether or not to make special provisions when holidays fall on employees’ days off.

 

DEAR CARRIE: Do employees at a private company have any recourse if they are being systematically terminated just before they become vested in their pension? I see a pattern at our company of people being fired just before they become vested. Can you tell me what our rights are? — Pension Mischief?

 

DEAR PENSION: I contacted the Pension Rights Center in Washington, D.C., for help, and its legal-program director pointed out a federal law that calls into question the practice you describe.

“It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan,” Section 510 of the Employee Retirement Income Security Act states. Part of that law is administered by the Employee Benefits Security Administration, which oversees private-sector pensions.

And, yes, you have some recourse. Contact EBSA at 212-607-8600 or call toll free at 866-444-3272. Or go to askebsa.dol.gov for help.

Emily Spreiser, the Pension Rights Center legal-program director, suggests that you contact an attorney who specializes in employee benefits law. To find one, call the National Pension Lawyers Network, a referral service operated by the center, at 888-420-6550. You can also go to pensionrights.org/help/npln for more information.

Once an employee becomes vested in a defined-benefit pension, a retirement benefit that employers pay based on employees’ salary and years of service, the right to the pension is irrevocable, meaning it cannot be taken away. So you and your co-workers have a lot riding on determining just what is driving your employer’s decision to fire employees just before they become vested.

Go to bit.ly/LIworks for more on how federal law defines hours worked.

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