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BusinessColumnistsCarrie Mason-Draffen

Shifting hours from busy season to slow weeks is illegal

Federal labor law says employers' records must reflect

Federal labor law says employers' records must reflect hours worked each week of a pay period. Applying extra hours worked to a later pay period is a violation, says a U.S. Labor Department official. Photo Credit: iStockphoto by Getty Images

DEAR CARRIE: I work part time for an accountant and average 30 hours a week, except during our busy season, when I often work more than 40 hours a week. I am always paid for overtime when I exceed 40 hours. And when I work the longer hours, I typically shift about 10 of them to offseason months so that I can get paid for a whole week, while working just four days. After 15 years of doing this, I have been told that this practice is no longer possible because of a change in IRS regulations. Is this true?

— Squirreling Away Hours

DEAR SQUIRRELING AWAY: Attributing the change to the IRS sounded unusual because the agency doesn’t typically deal with such issues. And when I checked with the IRS, it said as much.

“The IRS does not regulate the laws and standard practices on wages and hours worked,” a spokeswoman said.

Maybe your employer decided to stop the practice for this compelling reason: It violates federal labor law. Those laws say that each workweek stands alone and that hours from one week cannot be shifted to another. Even though many employees are paid every two weeks, their employers’ records must reflect what happened in each week of the pay period.

“Compliance is determined on a workweek,” said Irv Miljoner, who heads the Long Island office of the U.S. Labor Department.

That’s especially true when you work overtime.

Employees “have to be paid their full regular rate for all hours worked before you even look at overtime,” Miljoner said.

So that means no carry-over.

The statutes that prohibit the commingling of workweeks are primarily aimed at employers who do such outlandish things as averaging workweeks over a pay period to avoid paying overtime or shifting hours from one workweek to another for the same reason. That isn’t your employer’s intent because the company pays you overtime. Still, shifting the hours is illegal.

The company did you a huge favor by allowing you to bank hours you had already worked. But it put itself at risk by not complying with labor law.

DEAR CARRIE: I have a friend who works part time in a chiropractor’s office. She is paid hourly and doesn’t need a degree for her job. She has to do “homework” each week that consists of watching DVDs and researching articles that pertain to the business, plus attend two conferences a year. She is never paid for watching the DVDs or researching the articles. And when she travels, she is paid only for the training time and for gas, but not for travel time or meals.

On top of all this, she is now being told that she has to participate in phone conferences outside of her regular working hours, also without pay. She is thankful to be employed but at the same time feels taken advantage of. What are the laws regarding this?

— On the Clock?

DEAR ON THE CLOCK: If she is hourly, the company has to pay her for the extra time. If she has to attend after-hours meetings that aren’t voluntary, she has to be paid for that time. She also has to be paid for the phone conferences.

“It’s a requirement that is being put on her, and therefore it has to be paid,” Miljoner said.

As for the road trips, if the travel time to the conferences exceeds her normal work commute, then she has to be paid for the extra time, Miljoner said.

“It’s a work assignment like any other,” he said.

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