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Q AND A: Worker planning to resign may lose vacation

Question: My company doesn't believe it has to pay for vacation time already earned. A colleague resigned with 40 hours of paid time off carried over from last year and five hours accumulated since January. She had to forfeit all that time becaus...

Question: My company doesn't believe it has to pay for vacation time already earned. A colleague resigned with 40 hours of paid time off carried over from last year and five hours accumulated since January. She had to forfeit all that time because she is leaving, according to the human resources department. And HR also told her that any time taken after the two weeks' notice will be unpaid. My co-worker had expected to get paid for any time she had already accumulated. Is our employer acting legally?

Answer: New York labor law doesn't require employers to offer perks such as paid time off. So when companies offer such benefits they are free to set policies for them, as long as they don't discriminate or violate a union contract or employment agreement.

But here's the rub: Many employees don't read the fine print of those policies until it is too late. Some state that employees forfeit vacation and other paid time off when they resign. And that seems to be the situation with your colleague.

That's why employees should decide whether to announce that they are leaving well after they have used up accumulated paid time off.

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Q: I work with a woman who brings her son to the office to do actual work. He is just 16 years old, and I believe he is still in high school. But he sometimes works with us as late as 2 a.m. Do labor laws allow kids to work until the wee hours of the morning? Does this law change if the parent gives consent for the child to work? She says "yes," but I think not. Can you clarify the law for us?

A: The mother is breaking state labor law by letting her son work so late, said employment attorney Troy Kessler of Shulman, Kessler in Melville, N.Y.

"That child has no business being in the workplace at 2 a.m., even with parental consent," he said.

A 16-year-old is generally permitted to work until 10 p.m. on a school night. He or she can work until midnight only with parental consent and a school certificate of "good standing," Kessler said.

By contrast, federal labor law doesn't restrict the time of day a 16-year-old works or the number of hours they work. But they cannot work in "hazardous" jobs, such as operating meat slicers.

The more restrictive state law prevails here. So a 2 a.m. quitting time for a 16-year-old is a no-no.

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Q: A friend works for a subcontractor of a larger company. Many days, he goes in to work and the foreman says there is no work. Some weeks he brings home less money than if he were on unemployment. Is this legal or can he in some way collect unemployment as he cannot pay the mortgage with what he earns.

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A: Kessler said your information is a bit sketchy, which makes a definitive answer difficult. But generally, if the subcontractor requires your friend to show up for work, he should be paid. And if the company doesn't pay, your friend may have a claim for unpaid wages as well as an unemployment benefits claim. Your friend could qualify for unemployment benefits if he was previously working full time and no longer is, Kessler said.

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ABOUT THE WRITER

Carrie Mason-Draffen is a columnist for Newsday and the author of "151 Quick Ideas to Deal With Difficult People." Readers may send her e-mail at carrie.draffen@newsday.com .

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Distributed by McClatchy-Tribune Information Services.

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