The Firm was quoted in Newsday today in a column by Carrie Mason-Draffen. Check out the article below.

DEAR CARRIE: I work at a day care center. We are paid for our 30-minute lunch break and are not allowed to leave the premises during that time. I understand the reasoning for the policy. It ensures that we are on site to help in case of an evacuation. But the director says the 30 minutes cannot be applied to our total work hours, even though we sometimes work through the break because of parent calls. In fact, our handbook states that the director can decide whether or not we should be paid for overtime. Is it legal to exclude working lunch time from our total hours worked for the week?

— Indigestion

DEAR INDIGESTION: Though you have just one question, it encompasses various aspects of labor law. I’ll start with the most straightforward. When you work, that time should be accounted for in the day care’s payroll records.

“On the days that you work during your lunch, these hours should be counted toward the number of hours worked per week,” said employment attorney Sheree Donath of Donath Law in Uniondale.

Next is the issue of whether you should be paid overtime if working through lunch takes you over 40 hours a week.

If you are a teacher at a facility that meets the definition of an educational establishment, you may be exempt from overtime, Donath said. Teachers at day care centers are exempt from overtime and minimum wage if they, like teachers at elementary or secondary schools, fall into the professional-exemption category.

“If you meet this definition and your school is considered an educational establishment, then you may not be entitled to overtime,” Donath said. On the other hand, “if you are not a teacher or do not meet the requirements of the professional teacher exemption, then you may be entitled to overtime pay if you exceed 40 hours of work each workweek.”

It’s worth mentioning that an overtime rate doesn’t have to kick in simply because you surpass your customary work schedule, Donath said.

So if you are scheduled to work just 30 hours a week, and you work through your 30- minute lunch break every day, you would have worked only 32 1⁄2 hours that week and would not be entitled to overtime. If you are an hourly employee, you would have to be paid for those extra 2 1⁄2 hours but not at an overtime rate, which is 1 1⁄2 times your regular hourly rate for every hour over 40 in a workweek.

If you are an hourly employee, the company, by offering you a paid lunch hour, at least covers the time you have to talk to parents.

“Generally an employee does not need to be paid for the 30- minute lunch break you are receiving, provided that you do not perform any work during this entire period,” Donath said. “If you do perform any duties, then you are not considered relieved from duty and would have to be paid for this time.”

“An employer cannot just say you are not entitled to overtime if the facts of your circumstances are otherwise,” Donath said. “A handbook provision stating you are not entitled to overtime may not be valid as it may be an illegal attempt to circumvent the overtime laws.”

She recommended that you, with a copy of the company handbook in hand, consult a lawyer who could advise you based on the particulars of your situation.

“Once the facts of your situation are reviewed, you can determine the next best course of action,” she said.

Donath said you could also contact the U.S. Labor Department at 516-338-1890 or 212-264- 8185. Or try the state Labor Department at 516-794-8195 or 212- 775-3880.

If you have not been properly paid, you may be entitled to back wages and damages, she said.

Is your New Year’s Resolution to make changes in your career? Are you considering resigning from your job? Do you feel that you have no alternative but to resign?

I was quoted in today’s Newsday article by Carrie Mason-Draffen. See the article below:

DEAR CARRIE: I am a member of the New York State School Music Association, or NYSSMA, which is an organization dedicated to advancing music education in school systems across the state. Every spring, NYSSMA sponsors evaluation festivals during which students perform and then receive ratings and written comments about their musical proficiency. I am one of the many judges for the various festivals. NYSSMA conducts the judges’ training, formulates the scheduling, determines how the performances are scored, and sets the hourly pay rate. Yet it reminds us at the beginning of every season that we are independent contractors. How can this be? — Sour Note

DEAR SOUR: Based on the information you provided, it’s possible you are being misclassified as an independent contractor, said employment lawyer Sheree Donath of Donath Law in Uniondale.

A lot is at stake in classifying workers. Employees, unlike independent contractors, may qualify for their employers’ health benefits, paid time off and pension contributions, as well as state unemployment benefits should they lose their jobs, Donath said. For employers, hiring independent contractors means they forgo all those expenses and more.

“Many organizations like to hire workers as independent contractors rather than employees to avoid making payment of benefits and taxes,” she said. “For this reason, many workers are misclassified as independent contractors.”

Employers can’t just declare someone an independent contractor. By law, many criteria must be met. And at least three government agencies have guidelines for determining an employee’s status, and they all look at the issue of control.

The New York State Department of Labor looks at whether the employer controls such things as: the work to be performed, the rate of pay and the hours of work. The department also looks at who supervises the independent contractor and whether the company requires the contractor’s exclusive service.

True independent contractors control their working environment, Donath said. And they are free to work for several businesses. They can accept or reject certain projects and may have their own business.

The U.S. Department of Labor uses determining factors that include: whether the work is an integral part of the employer’s business; whether the employer controls the work; whether the independent contractors’ managerial skills affect their bottom line; whether the work performed requires special skill and initiative, and whether the relationship between the worker and the employer is indefinite.

The IRS guidelines look at the relationship of the employer and independent contractor to determine such things as behavioral and financial controls and the nature of the relationship.

With the behavioral factor, Donath said, the key question is: Does the company control or have the right to control what the worker does and how that person does his or her job? For the financial element the agency looks at whether the business aspects of the independent contractor’s job are controlled by the employer, she said. These include things like how worker is paid, whether expenses are reimbursed and who provides the tools and supplies. Lastly, the federal agency looks at broader aspects of the relationship such as whether a contract is involved and whether employee-type benefits are offered.

So you need to answer some key questions about your work arrangement to determine your true status, Donath said. For example, are you required to work at every festival or can you choose which festivals to judge? Are the supplies provided for you or do you provide your own? Do you receive any benefits from NYSSMA? Can you decide what training to attend? And are you able to promote your own business while judging at the festival?

“I suggest that you consult with an experienced attorney to determine if you are being classified improperly and to find out your rights and options,” she said.