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BusinessColumnistsCarrie Mason-Draffen

Help Wanted: Pay may be optional when companies close for holidays

Everyone loves time off around the Fourth of

Everyone loves time off around the Fourth of July holiday, but how employees of companies that close are paid varies. These fireworks were in Eisenhower Park in East Meadow on June 28, 2014. Photo Credit: Howard Schnapp

DEAR CARRIE: My niece's company closes its offices during July 4 week and the weeks between Christmas and New Year's. The employer gives the employees paid holidays for July 4, Christmas and New Year's Day but the employees must use their own paid time off for the rest of the time the office is closed. If they have no PTO in reserve, they simply do not get paid during the closings, over which they have no control. Is this legal?

-- Closed Out

DEAR CLOSED: It is legal if your niece is nonexempt, which generally means hourly. Companies have to pay those workers only when they work. So in a way the company is giving your niece and her co-workers more than the law requires because it gives them some paid holidays and allows the workers to use paid time off so they can continue to get paid during the closings. The matter gets more complicated for exempt employees, such as managers, but even then the company could require those employees to use their paid time off during the closings.

The next questions are follow-ups to a column that appeared earlier this month about whether companies have to pay school bus drivers when they take state-mandated refresher courses.

DEAR CARRIE: I am a union officer who represents some local bus drivers, van drivers and driver assistants. Your article earlier this month resulted in many inquiries from employees. I would like nothing more than to be able to tell our private-sector employer that he owes many people money for their time taking refresher courses.

All employees must take the state-mandated safety refresher courses twice a year. The company provides these classes at its corporate office. He has never paid employees for these classes and claims he is not required to provide them. Your article stated that employees must be paid for their time, but you didn't state if the company must provide the classes. Do you know if the employer is required to provide these classes? Any information you could provide regarding this issue would be greatly appreciated. -- Class Act?

DEAR CLASS: Any instructor certified by the state Department of Motor Vehicles can offer such classes. So your company is right about not having to offer them.

But the key issue is whether time spent in such classes counts as work. In the private sector it does, and the bus drivers have to be paid because the courses aren't voluntary, among other things.

I'm not talking about extra pay on top of wages. For example, if a bus driver works from 9 to 5, and the last hour of his or her day is spent taking a refresher course twice a year, that last hour counts as work and has to be paid.

If you believe your union members were not properly paid for the test time, contact the U.S. Labor Department at 516-338-1890.

DEAR CARRIE: You're going to get a lot of questions regarding this, as it is standard practice, at least at the company I work for, to not pay for training. Their excuse is, "It's state-mandated and, therefore, not something you get paid for." You'd think the company's lawyers would know this. I bet they were hoping no one would find out. Is there any way to get the retroactive pay that seems to be due?

-- Underpaid

DEAR UNDERPAID: As I mentioned in the answer above, if the company is in the private sector, it has to treat the refresher-course time as work and has to pay the school bus drivers for the time spent taking it. Again, I am not talking about extra pay for taking the test. I am talking about counting the test time as hours worked. For more information, call the number above.

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