When the job's handbook says overtime pay is optional

DEAR CARRIE: I work at a day care. Our handbook states that it is up to the director to decide whether overtime is paid, regardless of the amount of extra hours we work. And he never allows us to include our 30-minute lunch break in the weekly count, even though we sometimes have to interrupt our break to take calls from parents. We are around to take those calls because we have to remain on site for lunch in case an emergency requires us to evacuate children. I have made my peace with that. But I am wondering if it's legal to refuse to pay us for lunch when we work part of it. -- Day-Care Daze

DEAR DAY CARE: You raise several interesting points that are worth addressing.

If you are an hourly employee and you work more than 40 hours a week, you have to be paid overtime. That is the law. And if you are hourly and perform work during your lunch hour, your employer has to count that time toward your hours worked for the week.

On the other hand, if you are exempt because you are a manager, for example, the company doesn't have to pay you for any extra time, even if you work during lunch. But state law entitles employees who work more than six hours a day to an uninterrupted lunch break of at least 30 minutes, with just a few exceptions.

As for requiring employees to remain on premises for lunch, that is legal as long as your employer gives you and your colleagues a lunch break.

For more information, call the New York State Labor Department at 516-794-8195 or 212-775-3880, or the U.S. Labor Department at 516-338-1890 and 212-264-8185.

DEAR READERS: Last week's column about the supervisor who limited employees' bathroom time to nine minutes a day drew a number of interesting responses, including emails from an employer, a business professor and a lawyer. Here's what they wrote:

DEAR CARRIE: We employ 15 people. I can realistically say in my shop that frequent bathroom breaks are not health-oriented. They are what I call Facebook and text breaks, as my staff cannot use their phones while on duty. This is not based on my suspicions. The more responsible staff members have informed me. I am sure this is a big problem all over.

DEAR CARRIE: There are a couple of more points that can be used against the bathroom policy. It can adversely impact protected classes in the following ways: It can violate the Americans With Disabilities Act for diabetics and other people with medical conditions that require more bathroom time; it can violate the Pregnancy Discrimination Act, as pregnant women require more frequent bathroom breaks; it could also be argued that it violates Title VII, as women generally tend to take longer in the bathroom than men. Go to any public restroom and note the comparative length of lines for the men's and women's rooms to illustrate this!

DEAR CARRIE: The situation presented by the employee whose employer is timing bathroom breaks is infuriating. It reminded me of something I read a few years ago, that being a waiter or waitress is one of the unhealthiest jobs. That is because wait staffers in busy restaurants have to work long hours, often delaying bathroom breaks because they just cannot get away from their customers in the dining room to heed nature's call.

This frequently can lead to bladder infections. So, in my opinion, the shortsighted, mean, unreasonable employer that puts limits on bathroom breaks is also stupid. The employer is likely setting the stage for employee health problems, which can lead to absenteeism and a loss of productivity.

For more on federal overtime regulations go to http://1.usa.gov/SWzvZo