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BusinessColumnistsCarrie Mason-Draffen

Help Wanted: Unpaid downtime annoying, but legal, for hourly workers

Hourly swim instructors have to be paid only

Hourly swim instructors have to be paid only for the hours they work, but the school can't tell them how to spend their downtime if it doesn't want to pay them. Photo Credit: iStock

DEAR CARRIE: Two of my children work as instructors at a local swim school. When new people are hired they tell management about their availability to work. For example, my daughter told them she could work from 3 p.m. to 8 p.m. The office then scheduled classes every half-hour in that time period.

In the past, if a half-hour slot wasn't filled with a class, the instructors could perform various jobs around the facility such as clean the deck or sweep the bathrooms in order to get paid for that open half-hour.

Now, the company has a new policy that no longer pays instructors for half-hour slots that aren't filled with a class. They aren't allowed to do various jobs around the pool or even take a makeup class in that half-hour. So essentially they could be there for five hours and only get paid for three.

Is this legal? Dry Dock

DEAR DRY DOCK: It is unfortunate for your children, but it's legal.

Hourly workers have to be paid only for the hours they work. And if the location is seasonal — that is, it operates for limited months of the year — then its hourly workers don't even have to be paid minimum wage or overtime.

That said, the swim school can't tell the employees how to spend their downtime, if it doesn't want to pay them. It can't treat them as on-call employees and require them to remain in the office just in case a class is suddenly rescheduled.

In that scenario, the school would have to pay them for the downtime.

DEAR CARRIE: I am a registered nurse at a nonunion hospital on Long Island. I was hired to work part time but have effectively worked full time for the last two years. This was my choice, as I need the income. I spoke to management about working full time officially and getting benefits that full-time workers receive, such as increased health insurance and pension benefits and paid time off.

I provided documentation proving that I have been working full-time hours for some time, and in fact have even worked overtime. Despite that, my requests were refused. I am curious if this is legal? Why wouldn't I qualify? If I do qualify, would the benefits be retroactive? — Benefits, Too?

DEAR BENEFITS: For an answer I turned to employment attorney Howard M. Wexler of Seyfarth Shaw LLP in Manhattan. He said your eligibility to receive benefits like a full-time employee would depend on the terms and conditions of your employer's policy detailed in the employee handbook or in your offer letter.

In addition, eligibility also most likely depends on what is contained in the plan documents governing your company's health insurance benefits.

"These plans typically define what is meant by full time, and must be made available to employees upon request," Wexler said.

If you disagree with the hospital's interpretation of the policies, he said, the state Labor Department's Division of Labor Standards investigates claims for unpaid benefits or wage supplements, including the benefits you believe you should be receiving.

Though companies are required to have their benefit policies in writing, it is always worth noting that they have wide latitude in setting those rules, because labor laws don't require employers to offer benefits. And when companies do, they can set the terms because the benefits don't involve hours worked.

"Under the New York State labor law, payment for time not actually worked is not required unless the employer has established a policy to grant such pay," Wexler said. "When an employer does decide to create a benefit policy, that employer is free to impose any conditions they choose."

For more information, call the Labor Department at 516- 794-8195.

For more on state regulations regarding paid-time off, go to


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