Company handling nonexempt worker's overtime illegally

DEAR CARRIE: My husband is an hourly employee and works from 8 to 5. The company requires coverage at nights and on weekends. Before the economic downturn, he earned overtime pay whenever he worked more than 40 hours a week.

Lately, the company has begun to limit overtime pay with a system that banks the extra hours for future use, sort of a bank for vacation time. Occasionally, it reverts to the old system of overtime pay.

But the company doesn't advise employees about how they will be compensated for the overtime hours until after they have worked them. Is this legal?

In addition, the company has implemented a system that requires employees to make themselves available for overtime one weekend every two months, if no one volunteers for that work.

Compensation is at the discretion of the employer. I construe this as forced overtime, unlike the previous system of voluntary overtime. Is this also legal? -- Overtime Morass

DEAR OVERTIME: How the company changes up the program is less important than the fact that it is blatantly illegal to begin with. Your husband, as an hourly employee, is nonexempt. That means he has to be paid for overtime and paid in the pay period that he earned it.

"They cannot bank hours -- beyond 40, or otherwise -- for payment or compensatory time to be payable at a later time," said Irv Miljoner, who heads the Long Island office of the U.S. Labor Department. "Overtime premium pay is due for all hours worked over 40 in a workweek by a nonexempt employee, and each workweek stands alone."

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What's more, in the private sector, nonexempt employees must receive overtime pay, not comp time, for every hour over 40 they work in a workweek.

The "forced" overtime, on the other hand, is probably legal. Without a union contract or other employment agreement that says otherwise, employers generally can dictate how many hours or days employees work.

That's part of the "at-will" employment principle, Miljoner said. Under that doctrine, workers serve at the will of the employer, and New York, like most states, is an at-will employment state.

DEAR CARRIE: My son was laid off from a local manufacturer where he worked as a commissioned salesman for seven years. The layoff came as a complete shock to him and the other employees let go.

They were dismissed with no notice, no exit interview or unemployment benefits info. They were just handed their W-2 forms and the week's pay stubs. My son is owed thousands of dollars in commissions.

Is he entitled to the money? If so, how does he go about getting it? Is the way the company let people go legal, and do they have any recourse? -- Illegal Layoffs?

DEAR ILLEGAL: If he earned the commissions, the company must pay them.

"The salesman should ask for an accounting and payment for all outstanding commissions from the employer," said a spokeswoman for the New York State Labor Department. "If this is not forthcoming within the month, he can file a claim with the department's Division of Labor Standards."

As to your termination question, companies, with a few exceptions, can dismiss workers at any time without notice and without having to justify their actions. That gets back to the employment-at-will principle mentioned in the answer above.

Regarding exit interviews, companies aren't required to hold those parting talks with employees. Those discussions can be invaluable, though, because they make companies aware of problems and ways to avoid them. But too few companies avail themselves of this helpful process.

For further information
To file a claim for unpaid commissions click here to go to labor.ny.gov/workerprotection/laborstandards/workprot/lshmpg.shtm to download a copy of form LS-223 and supplement LS223.1.

To file for benefits online, click here to go to ui.labor.state.ny.us/UBC/home.do?FF_LOCALE=1