Help Wanted: Hourly nurse deserves OT pay

DEAR CARRIE: The hospital where I work as a registered nurse is installing a time-clock system that requires employees to sign in with their ID badge and a "fingerprint."

We RNs, who are hourly employees, are instructed to always sign in, but to sign out only when we work approved overtime.

So when we work what is considered unapproved but necessary overtime to finish up something, we aren't supposed to record that time on the clock. And we wind up not getting paid for the extra hours. Is this legal? -- Phantom Overtime

DEAR PHANTOM: Your question is an interesting one because you are a registered nurse and an hourly employee, an unusual combination. Generally, RNs are salaried and are considered exempt from overtime because they fall into the professional category. But because you are paid hourly, that exemption is nullified and your company has to pay you for every hour you work as well as for overtime.

"They should be paid for all hours worked [including time-and-a-half for overtime hours over 40 in a workweek], whether they were preapproved or not," said Irv Miljoner, who heads the Long Island office of the U.S. Labor Department. "The company can dictate the hours of work, but if the workers were permitted to work, they must be paid, regardless of who or when or whether it was approved."

In addition, the company must keep accurate records.

"Nonexempt employees [which would include RNs paid on an hourly wage basis] must have an accurate daily record kept of all hours worked," Miljoner said. "So they should always sign out [or some other accurate timekeeping record must be kept], whether or not overtime is approved."

 DEAR CARRIE: My company entitles us to six sick days and two personal days a year. I am a salaried employee and am also eligible for 15 vacation days. Last year I exceeded my accrued sick time by 12 hours, which brought me into a negative sick-time balance when this year started. So my company is deducting the 12 hours from my upcoming vacation time to make up the difference. But when I work more than 40 hours a week, I am not paid for those hours. Given that, is it legal for my company to deduct from my vacation time? I'm confused. -- Legal Recovery?

DEAR LEGAL: You raise two issues: benefits and overtime. And when you throw in your status -- you hint that you are an exempt employee - those ingredients make for an answer you probably won't like.

Exempt employees, who must be salaried, as you are, don't qualify for overtime, no matter how many extra hours they work in a week. They fall into the executive, administrative, professional or outside-sales categories.

"If an employee is properly classified as exempt under the wage and hour laws, he is not entitled to extra pay for hours worked in excess of 40 in a workweek," said Ellen Storch, counsel at Kaufman Dolowich Voluck & Gonzo in Woodbury.

As for benefits, employers have a lot of leeway in setting policy because they aren't required to offer extras like paid time off.

"A New York employer has no obligation to provide pay for personal, sick or vacation days to exempt or nonexempt employees," Storch said. "If an employer elects to do so, it may craft the policy as it deems appropriate."

That means that deducting from your accrued vacation days is probably legal.

"The employer's practice of reducing the employee's paid-time-off bank as described is lawful, if it is in accordance with the employer's written policies," Storch said.

By contrast, the laws for docking an exempt employee's salary are more restrictive. For example, the company could dock your pay only if you miss a full day, not a partial day. Otherwise the company risks losing your exemption from overtime.