Dad seeks relief from his weekend schedule

DEAR CARRIE: I was told that I had to work on the weekend or I would be written up. The person normally scheduled to work the weekend said he couldn't this Saturday but could work Sunday for 1 ¾ pay.  That doesn't work for me because I have court-ordered visitation with my kids four days a month. I will miss out on a whole day with them because of the situation at work. On top of that, I will not get paid for working Saturday. I will get paid time off instead. And that means I will miss out on overtime even though working on a weekend will put me over 40 hours for the week.  We work a 35-hour week. By the way, on our time sheet the company lists hours worked but over a two-week period. So time worked in any one week is not viewable. Is any of this legal? — Dad in a Bind

DEAR DAD:  Your questions are related to several aspects of labor law. Let's start first with time off for the visitations. I'm afraid the news isn't good.   

"There is no law that gives an employee a right to a day off when he has court-ordered visitation with his children," said employment attorney Richard Kass, a partner at Bond, Schoeneck & King in Manhattan. Still he added, "Smart employers recognize that it’s a good idea to try to accommodate employees’ reasonable needs, especially when the job market is tight," Kass said.

The next area concerns your unpaid hours.  If you are an hourly employee, you must be paid for all the hours you work, and earn overtime when you work more than 40 hours a week. And if you work in the private sector, you have to be paid money for that time, not given comp time.

"With the exception of government employers, comp time is not a legal alternative to the required money payment, even if the employee prefers it," Kass said.

Now, the company could give you some paid time off during the week so you don't exceed 40 hours because of your weekend schedule. "That’s just another way of saying that the employee will not work more than 40 hours," Kass said.

Lastly, overtime must be calculated weekly, Kass said.

"The trigger is 40 hours per week, not 80 hours in two weeks, " he said. 

"If the reader’s employer does not obey these rules, then the Department of Labor — state or federal — can definitely help, he said.

You can reach the state Labor Department at  516-794-8195 or 212-775-3880. Contact the U.S. Labor Department at 516-338-1890 or 212-264-8185. 

DEAR READERS: Here's an interesting point of labor law for employers to ponder: Be careful how you structure your year-end generosity to hourly employees, one local employment lawyer cautions. 

"In a tightening labor market, incentives have become more critical in attracting holiday labor," said Tyler Hendry, an associate, also at Bond Schoeneck. "However, common incentives such as bonuses, gift cards or free meals can potentially increase an employee’s overtime rate."

Here' s the deal: If an employer gives employees a bonus, gift card, etc. tied to job performance and the employees work more than 40 hours the week the payments are awarded, the extra pay could increase the workers' base pay and thus bump up the employees' overtime rate for the week, Hendry said.

What should employers do? 

"If you structure the bonus right and ensure that it's a discretionary bonus that the employer has the right to determine the amount of and whether it's given, you can be sure that it won't be treated as an item that needs to be included in the overtime calculation," he said.

He acknowledged that "you don't see a lot of cases," but he makes sure his clients are aware of this law, just in case.

Sometimes labor law moves in mysterious ways in the season of giving and receiving.