Intra-shift pay differentials are legal

DEAR CARRIE: I work for an agency that breaks down the hourly pay during my shift into three pay scales. For example, my schedule runs from 11 p.m. to 9 a.m. From 11 p.m. to midnight I earn a particular pay rate. From midnight to 7 a.m., another rate kicks in. And from 7 a.m. to 9 a.m., the final rate takes effect. Can the agency legally do this? I thought companies traditionally paid differentials for a particular shift, not within a shift. On another note the agency decided to celebrate July 4 last year on July 6, a Monday, rather than on the Saturday that was the actual holiday. So I didn't get holiday pay for working on July 4. But I believe I should have because our employee handbook clearly states that July 4 is a premium-pay holiday for those employees that work that day. I didn't receive notification about any changes in the handbook. Does my employer have to give holiday pay to those who worked July 4? -- Shifty Pay?

DEAR SHIFTY PAY: Much to the surprise of both of us, the intra-shift differential is common, an employment attorney said.

"It's not unusual to tie the differential to particular hours of the day, so that an individual whose shift cuts across different blocks of time gets paid at different rates," said Richard Kass, a partner at Bond, Schoeneck & King in Manhattan. "It provides an incentive for employees to work undesirable hours."

The three-step differential is less common, he said, but as with any intra-shift differential it is legal as long as the hourly pay works out to at least the current federal and New York State minimum wage, which are both $7.25 an hour.

It's also important that companies with the varying pay rates use the right computation for overtime, said Irv Miljoner, who heads the U.S. Labor Department's Long Island office. They should use a "weighted average" when computing the hourly overtime rate for employees who work more than 40 hours a week. A weighted average takes into account the different pay rates and the number of hours worked at those rates.

As to your holiday question, the answer depends on what your employer promised and what pay you wound up with. "If the employer led the reader to believe that the work she performed on July 4 would be paid at a premium rate, then that premium should have been paid," Kass said.

On the other hand, if you worked just one day, July 4, and wound up with two days' pay because of the July 6 company holiday, you may not have a basis for a complaint.

"It sounds as if that is exactly what she may have received," Kass said. "No harm. No foul."

But if you wound up making much less than the company policy indicated, you should make that known.

"If the reader really lost out in terms of pay or days off, she should complain to the company's HR department or management," Kass said. If that doesn't work, he said you should consider checking with the New York State Department of Labor. 

Can restaurant deduct break time not taken?

DEAR CARRIE: My girlfriend works in a restaurant, some days as a hostess and other days as a waitress. Her shift is normally about six hours, sometimes longer. Her employer deducts 30 minutes per day from her pay for breaks. Many times if the restaurant is busy, she can't take a 30-minute break. Is it legal for her employer to make this deduction even if she can't take the break? -- Phantom Break

DEAR PHANTOM: If your girlfriend isn't a bona fide manager, and it sounds as if she isn't, the restaurant has to pay her for all the hours she works. If she isn't taking the break, the company can't charge her for it.

 FOR MORE ON MEAL BREAKS
Click here to go to labor.ny.gov/workerprotection/laborstandards/employer/meals.shtm or call the State Labor Department at 516-794-8195 or 212-775-3880.