Grandpa questions swim center's pay policy 

DEAR CARRIE: My granddaughter works as a swimming instructor at a private company. When clients don’t show up, she doesn’t get paid. Yet, the clients still have to pay for a missed session. Last week she was there for four hours but got paid for only two because of cancellations. Is this legal? — Not So Swimmingly 

DEAR NOT:  Whether or not the company's action is legal depends on whether your granddaughter's employer restricts her actitivies during the time she isn't giving classes. In other words, when she isn't on the clock because of a cancellation, the company doesn't have to pay her if she is free to spend that time as she sees fit, even leaving the premises. If she is required to remain on premises, even if she isn't performing any work, she has to be paid for that wait time. In that situation her status would be known as "engaged to wait."  And federal labor laws says hourly employees engaged to wait have to be paid. The U.S. Labor Department's Fact Sheet 22 includes the example of a secretary waiting to take dictation. She most likely wouldn't be free to leave the premises. That restriction would make her wait time work time.  

Legal or not, the company's decision not to pay her doesn't seem fair.  Perhaps when clients don't show up your granddaughter can ask the company if she can perform some alternative tasks such as tidying up the office, organizing the swim equipment or sending out emails to customers about specials. Just as the company has a policy to ensure that it receives steady income, even when there are cancellations, it should try to ensure the same for its employees.

DEAR CARRIE: I am an employee of another state government, but I have worked in a field office in New York for more than 30 years. When pursuing legal action regarding workplace issues such as age discrimination, would a worker in my situation need to bring action in New York or in the state that employs him or her? I’m inclined to think New York, but I have been unable to find a clear answer. — Whose Jurisdiction?

DEAR WHOSE:  In those circumstances you would likely file in New York, said an employment lawyer.

"It appears the reader’s situation may be redressed in the location he works inasmuch as age discrimination is prohibited by the New York Human Rights Law, and he is not excluded from coverage merely because his employer is out-of-state," said Carmelo Grimaldi, a partner at Meltzer, Lippe, Goldstein & Breitstone in Mineola. "Fortunately, the [state Division of Human Rights] and other government human-rights agencies will have staff to assist potential complainants in their filing decisions."    

And the fact that you are a public-sector employee doesn't exclude you from protection, he said.

"Fortunately, anti-discrimination laws cover government employees as well as most private employees," Grimaldi said. " Indeed, many government agencies have created internal offices and procedures for employees to complain about workplace discrimination and harassment."  

What's more, he said some states extend their anti-discrimination protections to government employees.  "For example, [New York State human-rights law] covers employers without distinguishing between private and public employees, except for federal employees," he said. 

"Thus, the New York State Division of Human Rights, which administers the human-rights law, has filed complaints against many agencies such as the State Workers’ Compensation Board and the New York City Human Resources Administration," he said. "Also, [the state human-rights law] covers entities whose activities outside the state injure state residents if such activities would be deemed unlawful discriminatory practices in New York State." 

"On the federal level, Title VII of the Civil Rights Act covers state governments and their political subdivisions, agencies, etc.," he said.

The federal Age Discrimination in Employment Act is also applicable to the states, he said.