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Business

Delivery driver is due OT when he clocks more than 40 hours

An employer's assertion that he doesn't pay overtime

An employer's assertion that he doesn't pay overtime doesn't trump the law. Photo Credit: Armin Weigel/picture-alliance/dp / Armin Weigel

DEAR CARRIE: My son drives a truck for a local delivery company. He has to clock in and clock out. His employer has told him that he doesn’t pay overtime. Even when my son works 60 hour a week, the owner pays him straight time. The other thing is that he hasn’t gotten a tax form to fill out and he’s not getting check stubs. He gets what look like personal checks. His employer has promised him a pay stub but has not delivered. Is this legal? — Mom Needs to Know

DEAR MOM: None of this sounds legal. As an intrastate truck driver, which sounds like what your son is, he is eligible for overtime. On the other hand, those drivers whose work takes them across state lines are not. So based on your description of his job, when your son works more than 40 hours a week, he must be paid 1 1/2 times his regular hourly wage. The boss’ announcement that he doesn’t pay overtime doesn’t trump the law, if your son is eligible for premium pay.

“An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance . . . will not impair the employee’s right to compensation for compensable overtime hours that are worked,” the U.S. Labor Department says on its website.

Under New York State’s Wage Theft Prevention Act, which took effect in 2011, employers must give employees a pay stub each payday that must list such things as the hours they worked, their rates of pay and itemized deductions. Companies that fail to do so can be fined.

Tell your son to call the state Labor Department at 516-794-8195 or 212-775-3880 for more information.

DEAR CARRIE My daughter works as an early childhood teaching assistant in a private school that provides special-education services. She works six hours a day and doesn’t get a break unless she has to go to the bathroom. She eats lunch while she monitors the students, who also eat in the classroom. She is never off duty unless she is in the bathroom. Is this legal? — Give Her a Break

DEAR GIVE: It’s legal, but it’s not a policy that is sympathetic to employees’ needs. Everybody needs a break after a few hours at work.

The practice is legal because New York state law mandates meal breaks only for employees who work more than six hours a day. So your daughter just misses the threshold for a meal break, which under state law has to be at least 30 minutes of uninterrupted time.

DEAR CARRIE: My daughter works on Long Island in the small office of a big company. She is eligible for two weeks of vacation a year, but often isn’t allowed to take the days. And as a result she loses all but four of them, which her company allows her to cash in. Is this legal? — Vacation Grinch

DEAR VACATION: I can’t imagine that it’s legal. Labor laws don’t require companies to offer vacation days, or other paid-time off, but when they do, they must honor the terms of that promise.

That doesn’t appear to be the case here. She should call the state Labor Department at the numbers above.

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