Help Wanted: No pay for forced day off?

DEAR CARRIE: I have worked as a dispatcher for a small carting company for almost six years. Starting about three years ago, I have been "laid off" on the days when two or fewer drivers are working, something that happens a few times each month. I am not paid hourly. Instead, I have an annual salary, and the company deducts the "days off" from my pay. Does it have the legal right to lay me off a day here and there even though I am salaried? -- Forced Day Off

DEAR FORCED: Your company can legally determine your hours, whether you are salaried or not. The question then is whether your employer can force you to take those days off without paying you for them. If you are a nonexempt employee, your employer only has to pay you for the hours you work. On the other hand, if you are exempt, it would have to pay you for those days.

Nonexempt workers fall outside of the executive, administrative, professional and outside-sales categories. They aren't managers, for example, nor are they generally professionals likes nurses or lawyers.

Whether you fit into either category depends on your duties, not just on being salaried. So unless you're a manager, you are most likely nonexempt and wouldn't have to be paid for those days off.

To be a manager you would have to perform supervisory duties most of the time and manage at least two full-time employees, said Irv Miljoner, who heads the U.S. Department of Labor's Long Island office, in Westbury. Your job description doesn't suggest management, Miljoner said.

"Even though he is salaried, he may or may not be exempt based on his duties," Miljoner said. "It doesn't appear he is exempt, from his simple characterization."

So if you're nonexempt, the company has to pay you only for the hours you work. And for the most part, companies can set employees' hours, regardless of their status.

"The company has the right to determine his days and hours of work, and they have the right not to pay him for time not worked," Miljoner said.

Exempt workers are another matter. The company would have to pay them for the forced days off in order to retain their exemption from minimum wage and overtime requirements. In exchange for such exemptions, companies have to pay those workers a guaranteed salary, generally a minimum of at least $455 a week, unless they miss entire days for personal reasons.

"If he is truly exempt, they would have to pay him for that day or they would defeat the exemption and would have to pay him overtime," Miljoner said.

DEAR CARRIE: In August my son worked 10 hours for an entertainment company, doing security for a concert. He was to be paid $14 an hour. He received a check that night, but it bounced. On top of that he had to pay a $15 bank fee. He has called the company, and it has promised to pay him. But as of this writing it hasn't paid him Could you please let me know to whom he should complain? And can he also demand that the company cover the bank fee? -- Bounced Check

DEAR BOUNCED: I have good news for you on both issues. Your son can contact the New York State Department of Labor about the unpaid wages and the bank fee. "Both the wages and the bank fee are covered by the wage payment provisions of the labor law," the department said. "The guard should file a wage claim form with the Division of Labor Standards."

Your son can obtain a claim form at the New York State Department of Labor website. For more on the exempt status, go to http://1.usa.gov/sQRzCo. To obtain a copy of the form for unpaid wages, go to http://bit.ly/uSI2yr