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10Hr Spread Rule and Holiday Pay

Discussion in 'Wage and Hour, Overtime' started by filip94, Sep 18, 2019.

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  1. filip94

    filip94 Law Topic Starter New Member

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    Jurisdiction:
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    Hello. I have two questions. I work in hospitality job in NY state.

    1 question:

    I'm working for the third time as a Groundskeeper. It's my summer work on J1 visa in the same hotel. I worked summer 2017, 2018 and now 2019. Every summer I work around 110 days. My employer refuse to pay me extra for holidays like 4 of July and Labour Day. He said that I need to finish 90days period because when I quit job and come back they register me as a new employee. Is it true that I do not suppose to be paid extra for holidays if I work only for summer? In 2018 they paid me extra for holidays but this year employer said that was a mistake in a system and I do not suposse to receive extra pay.

    2 question:

    How 10Hours Spread works in NY state? Is it right that employer suposse to pay me extra minimum wage for staying at work more than 10hours one day? I get paid when I work in two diffrent departments (groundskeeping and kitchen). For example I work 7AM-11AM in kitchen and switch for groundskeeping for 12PM-9PM. In this situations I receive extra minimum wage on my paycheck. But when I do more then 10hr in one department my employer refuse to pay me extra. Sometimes I have to work more than 9h 30mins + one 30mins break = it makes 10hours or more. My employer said that if I work in one department more than 10hr Im not going to receive extra minimum wage pay. Is it true or I suposse to recive extra pay?

    Thank you for answers.
     
  2. army judge

    army judge Super Moderator

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    The United States Citizenship and Immigration Services' (USCIS) regulations MANDATE that J-1 visa holders work ONLY for their program sponsors.

    Occasionally J-1 holders may work for non-sponsor employers provided they meet eligibility requirements, which vary depending on the applicable category.

    Exchange Visitors

    The J-1 classification (exchange visitors) is authorized for those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.


    In carrying out the responsibilities of the Exchange Visitor Program, the Department of State designates public and private entities to act as exchange sponsors. J-1 nonimmigrants are therefore sponsored by an exchange program that is designated as such by the U.S. Department of State. These programs are designed to promote the interchange or persons, knowledge, and skills, in the fields of education, arts, and science.

    Examples of exchange visitors include, but are not limited to:

    Professors or scholars
    Research assistants
    Students
    Trainees
    Teachers
    Specialists
    Au Pairs
    Camp counselors


    Hmmm, I don't see groundskeepers or kitchen help.



    Exchange Visitors

    J1 Visa - Requirements and Information on How to Apply
     
  3. cbg

    cbg Super Moderator

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    Employers in the US are not required to pay premium pay for holidays unless a legally binding and enforceable contract says they are. Some employers do so voluntarily; some employers don't. A 90 day wait before you are eligible for premium pay on holidays is legal.

    I'm not entirely clear on your second issue. If you are not being paid AT ALL for the hours over 8 in a day that is illegal - you must be paid for the time. But in NY, and in 46 other states, you are not entitled to OVERTIME pay (time and a half) until you have worked over 40 hours in a week - it does not compute daily.
     
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  4. filip94

    filip94 Law Topic Starter New Member

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    On J1 visa you can work as a groundskeeper and kitchen help, but it's not the topic of my question.

    I got my overtime paid. But I'm asking about 10 Hours Spread. I explain my situation and I'm wondering if I should receive extra minimum wage for every days when I worked more then 10hours on groundskeeping (one department) or just the days when I worked more then 10 hours in kitchen and groundskeeping (two departments).

    Thanks for your reply and trying to help!:)
     
  5. Zigner

    Zigner Well-Known Member

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    It doesn't matter if you work in different departments.
     
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  6. filip94

    filip94 Law Topic Starter New Member

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    Do you know where I can find informations about it to show to my employer. Is there any website or publications about 10Hours Spread Law?
     
  7. cbg

    cbg Super Moderator

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    If you worked 9 and a half hours and had a half hour lunch, your starting and ending times were 10 hours apart and you are NOT entitled to an extra hours pay. We do not know if you are in one of the industries for which this law applies (it does not apply to all industries) but even if you are, your start and end times need to be MORE THAN ten hours apart for it to apply.
     
  8. filip94

    filip94 Law Topic Starter New Member

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    I just found informations on NY State Department of Labour website:

    https://www.google.com/url?sa=t&sou...FjAAegQIARAB&usg=AOvVaw1YGpA1e-Bo7rjCyrYyIE3a

    § 142-2.18 Spread of hours.
    The spread of hours is the interval between the beginning and end of an employee's workday. The spread of hours for any day includes working time plus time off for meals plus intervals off duty.

    If I understand correct it means that working 9,5h+ with half of hour break makes 10 Hours Spread.


    § 142-3.4 Additional rate for split and spread of hours.
    An employee shall receive one hour's pay at the basic minimum hourly wage rate, in addition to the minimum wage required herein for any day in which:
    (a) the spread of hours exceeds 10 hours;
    (b) there is a split shift; or
    (c) both situations occur.


    If I understand correct I should receive a extra rate for every day when my working interval was 10hours or more.

    I'm working in hospitality/service industry. I'm working in a big hotel where we have a restaurant also.
     
  9. cbg

    cbg Super Moderator

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    It says EXCEEDS 10 hours. 9.5 hours with a half hour lunch does not EXCEED 10 hours.
     
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  10. filip94

    filip94 Law Topic Starter New Member

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    But 9:45 working hours with 30mins break authorize me to claim for extra "10Hours Spread" pay? I mean I need at least more than 10hrs which can also include break time or it have to be just working hours?
     
  11. army judge

    army judge Super Moderator

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    It won't matter one whit to your former employer what anyone here tells you.

    It wouldn't matter one whit to your former employer if you hired a lawyer and the lawyer told you to demand the money you believe you are owed, either.

    The quickest and easiest way to recover unpaid wages is typically to file a wage claim with the New York Department of Labor. For most wage violations, you must complete a Claim for Unpaid Wage (LS 22). For unpaid bonuses or vacation, sick, or holiday pay, you must complete a Claim for Unpaid Wage Supplements (LS 425).

    These fine folks: https://www.labor.ny.gov/workerprotection/laborstandards/workprot/collwage.shtm

    You can file a small claims case yourself, or you could hire an attorney to pursue the matter on your behalf.

    Most entities don't just roll over and cough up dough because someone walks in and says, "A person on an internet legal discussion site told me to tell you that you owe me $3,500, so pay up right now!!!"
     

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