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BusinessColumnistsCarrie Mason-Draffen

Ice cream parlor workers’ ‘wait time’ must be paid

Ice cream parlor workers forced to wait until

Ice cream parlor workers forced to wait until clean-up is complete must be paid for that waiting time, according to labor law. Photo Credit: Getty Images/iStockphoto

DEAR CARRIE: My daughter works for a local mom-and-pop ice cream parlor. After the store closes, all the employees are required to stay and clean. As the employees finish cleaning, they have to sign out. But no one is permitted to leave until everyone is finished. The employees who have to wait while their colleagues finish aren’t paid for that time. Is this legal? — What’s the Scoop?

DEAR WHAT’S: Well that’s a sure-fire prescription for creating tension among workers.

More importantly, hourly workers have to be paid for all the hours they work, and that includes the wait time you describe. When employees are “engaged to wait,” the phrase used in federal labor law, that is considered part of the work day. And employees have to be paid for that time.

Here are some examples from the U.S. Labor Department’s website: “A secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been engaged to wait.”

For more information call the Labor Department at 516-338-1890 or 212-264-8185.

DEAR CARRIE: I have a question about how Social Security retirement benefits and Social Security disability and long-term disability intersect. Last September, my wife left her job because of an illness. She was 62, and immediately applied for Social Security retirement benefits. She also filed for Social Security disability as well as long-term disability benefits from her employer. She received her Social Security benefits and was later approved for Social Security disability. And after an involved and frustrating battle, she obtained long-term disability benefits.

But the insurance company subtracts about $1,300 because of my wife’s Social Security benefit. It said that if she had waited to retire at her full retirement age of 66, she would have gotten the entire long-term disability amount without any deduction for Social Security. But, because she retired at age 62, the insurer maintains it can reduce the long-term disability by the amount of the Social Security she receives.

This seems wrong. Bad health forced my wife off the job, and now, to add insult to injury, she is being penalized financially. Since the long-term disability contract with her employer allows for the reduction, shouldn’t it be based on just the Social Security benefit she received at 62 — $1,100 — and not the added disability amount of $200? Her employer states they can reduce the long-term disability amount by the entire $1,300. What do you think? — Benefit Dispute

DEAR BENEFIT DISPUTE: First of all, she is probably just receiving Social Security disability benefits at this point, which are paid to qualified workers who haven’t reached their full retirement age, said Linda Lauria, a spokeswoman in the Social Security Administration’s Manhattan office. Once she reaches her full retirement age, the disability benefits will shift to retirement benefits, Lauria said.

How much a long-term disability insurer pays a policyholder who is also receiving Social Security depends on the insurance company’s offset rules.

Brian M. Mittman, managing partner at Markhoff & Mittman, a White Plains law firm, whose expertise includes Social Security disability, explains how the long-term policies generally work.

“If you have a long-term disability group policy that offsets Social Security, it will usually say something like this: ‘We will pay you your monthly benefit — say $5,000 — less other income and pay a minimum benefit of $100.’ So if you are getting $5,000 a month, and now Social Security pays you $2,600 a month, [the insurance company] will reduce your monthly payment to $2,400.”

It’s worth mentioning that because of the waiting period for Social Security disability benefits, your wife would have received some retirement benefits in the interim, Lauria said. So once the disability payments switch over to retirement benefits, she will continue to receive reduced retirement benefits, Lauria said.

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