Question: I am an hourly employee for a nonprofit agency. My boss expects me to work overtime and not pay me 1 1/2 times my hourly rate but instead gives me comp time. He instructs me to put down just 40 hours total on my time sheet, even when I work more than that. He also instructed me to keep a separate log of my comp time. I agreed to do this, but I really would rather have the overtime pay. Is this legal? What can I do to fight him on this and not lose my job?
Answer: Your boss is breaking the law, according to the U.S. Labor Department. Only state and local governments have the option of offering employees comp days in lieu of overtime pay when they work more than 40 hours in a week, and that's only if certain conditions are met, said Irv Miljoner, who heads the department's Long Island office in Westbury, N.Y. One condition is that an employee agree to the comp time.
"In general there's an overtime premium-pay requirement, i.e. time-and-a-half an employee's regular rate of pay for all nonexempt employees, whether they work for a private or nonprofit employer," he said.
Nonexempt employees fall outside the administrative, executive, professional and outside-sales categories. Nonexempt employees have to be paid for all the time they work, including overtime hours.
When state and local governments pay comp time, they have to grant it at a rate of 11/2 hours for each overtime hour.
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In addition to an overtime violation, your boss could be violating minimum-wage laws if, with the increased hours, your weekly wages amount to less than the federal minimum wage, which is $7.25 an hour.
Your employer could also be facing a record-keeping violation because your time sheet, without your overtime hours, won't reflect the hours you actually worked.
So what should you do, especially if you are afraid of being fired? You could try putting a copy of this column on his desk to try to educate him and keep him from incurring a Labor Department audit and fine.
Call the Labor Department at 516-338-1890 or 212-264-8185.
For more on what constitutes hours worked, click here to visit www.dol.gov/whd/regs/compliance/whdfs22.pdf .
For more on overtime pay requirements click here to connect to www.dol.gov/whd/regs/compliance/whdfs23.pdf .
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Q: After more than 20 years, my wife's company changed her status from a seasonal part-time employee to a year-round one. As part of the changeover she had to go for a drug test. Does her company have to pay her for the time spent traveling to and from the lab and the time at the lab? What about reimbursement for the mileage?
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A: As for her time related to the drug test, the U.S. Labor Department says she should be paid for it.
"It's compensable time worked," said Miljoner. "It's something that is required for the job."
He noted it was akin to mandatory training. Companies can legally avoid paying for training if it meets all four of the following criteria: It is outside normal hours; it is voluntary; it is not job related, and it is the only task being performed at the time.
Since your wife's drug test is mandatory, "we take the position that it's hours worked," Miljoner said.
On the other hand, companies aren't required to pay job applicants for the time to take a drug test because they aren't employees.
"That's something different," he said.
As for the mileage reimbursement, that is up to the company. But since the company doesn't reimburse your wife for business mileage, she can claim the cost as an expense on her taxes.
