DEAR CARRIE: I am an hourly employee at a surgicenter on Long Island. The hours aren't always predictable. On some days we work well past the planned closing time, but on others we finish early because the operating schedule is light. This time of year because of vacations and other factors, the schedule is particularly light and may be that way for a few weeks. So instead of working an eight-hour day, we may work only five or six hours. Lately, the office manager has been forcing us to use our paid time off to cover the hours we don't work. Can the manager force us to use our PTO, which is set aside for planned vacations? If we don’t use PTO, can the accumulative loss of hours be considered a layoff? If so, can we get unemployment benefits for those hours? — PTO Woes
DEAR PTO: It may seem unfair that some of your planned vacation days can be eaten away because of early dismissals, but it is legal. As an hourly employee you have to be paid only for the time you work. So technically you wouldn't have to be paid for those two or three hours you didn't work. But your employer is giving you the option of getting paid by using your paid time off. Can't the company just pay you for that time? Yes. Companies can always give employees more than the law requires. But it can also adhere to just what labor laws state. In addition, since your employer isn't required to offer paid time off, it can set the terms for how that time is used, such as allowing you to apply it to shortened days.
As for claiming unemployment for those unpaid hours, I don't think you can. Unemployment benefits are generally reserved for employees who lose a job. What's more, the hours you lose will be looked at on a weekly basis.
Here is what the state Labor Department's website says about unemployment-benefits eligibility: "You may not file for a week when you work four or more days or earn more than $435 gross pay between Monday and Sunday."
For more information call the department's unemployment Telephone Claims Center at 888-209-8124.
DEAR CARRIE: I began a leave under the Family and Medical Leave Act last Nov. 14 and returned to work on Feb. 5 of this year. Now I need to have another medical procedure that I want to schedule for Nov. 20. Can I qualify for another 12-week leave and be guaranteed my job? I am not worried about being paid. I just want my job to be there when I return. — Back to FMLA?
DEAR BACK: How soon you can take another unpaid 12-week leave would depend on how your company defines its FMLA year. Under FMLA regulations, employers can choose one of four options for defining a 12-month period in which a leave can be taken. Here is what they say about the time period that begins when an employee goes out on leave: "12-month period measured forward from the first date an employee takes FMLA leave. The next 12-month period would begin the first time FMLA leave is taken after completion of the prior 12-month period. For example, Lucia’s FMLA leave begins on Nov. 6, 2012, so her 12-month period is Nov. 6, 2012, through Nov. 5, 2013."
Following that example, your leave year would run from Nov. 14 of last year through Nov. 13 of this year. By Nov. 20 you would already be in a new FMLA year and possibly be eligible for another 12-week leave. But you will need to check with your company to see what FMLA leave year it has established.
And you are right that the FMLA, though unpaid, protects your job while you are out.
For more information call the U.S. Labor Department at 516-338-1890 or 212-264-8185.
Go to bit.ly/FMLAyearLI for more on the federal Family and Medical Leave Act.