|
|
The Fair Labor Standards Act (FLSA) was first enacted in 1938 during the Depression era. The statute includes a number of “fair labor standards,” most notably, the requirement to pay overtime to employees in certain circumstances. This article focuses on the basic requirement to pay overtime.
What Is Overtime?
Overtime is generally calculated as one and one-half times the employee’s regular rate of pay. Generally, the FLSA requires employers to pay overtime to employees who work more than forty (40) hours in one work week.
What Is a Work Week?
A work week consists of any fixed and regular set of days and hours. This could be Monday through Friday from 9:00 to 5:00, or Wednesday through Sunday, from 7:00 PM to 3:00 AM. The FLSA does not require employers to pay overtime for time worked at night or during the weekends, assuming that this work takes place during the employee’s work week. Obviously, if an employee is asked to work the weekend, after already having worked five eight-hour days during the week, he or she will be entitled to overtime.
Do I Have to Pay All My Employees Overtime?
The obligation to pay overtime depends on whether or not any of your employees are exempt from this requirement. The FLSA exempts certain employees from being entitled to overtime (“Exempt” Employees). A complete discussion of all the FLSA exemptions is outside the scope of this article. The most common exemptions are referred to as the “White Collar” Exemptions. These exemptions relate to particular classifications of employees who are not entitled to overtime due to the nature of their duties and compensation. These classifications include: Executives, Administrative Employees, Professional Employees, Computer Professionals, and Outside Sales Employees. Typically,
but not in every circumstance, teachers and principals are exempt employees.
Generally, to be an exempt employee under one of these classifications, an employee must be paid on a salary basis (at least $23,660.00) and have a number of supervisory and managerial duties that require a certain amount of independent discretion. An employee who does not meet the requirements of one of these exemptions, a “non-exempt” employee, is entitled to overtime any time his or her work week exceeds 40 hours.
Exemptions from overtime depend on more than just a classification of an employee on paper or the fact that an employee earns a salary. An employee must truly meet certain tests and criteria established by the courts in order to be an exempt employee. In a court case, it will be the employer’s burden to prove that an exemption exists.
Am I Required to Pay Overtime to Workers Who Are Not My Employees?
Depends. You are typically not required to pay overtime to independent contractors or contracted workers (e.g., employees from a temp agency or contracted maintenance personnel). Likewise, you typically do not have to pay overtime to volunteers. This does not mean that you will never be required to pay overtime to one of these workers. In certain circumstances, you may be liable or share in the liability with another employer for paying overtime, if, in a court’s view of the circumstances, you could also be considered an employer who directed and controlled the work. Cases involving independent contractors are especially tricky. Like exemptions, what is written on documents will not be controlling as much as the true circumstances and facts of the situation.
What If My Non-Exempt Employee Volunteers His/Her Time to Work for Me?
Some employers have those outstanding employees who come in early and stay late to get the job done. This is
certainly an admirable attribute, but an employer must be careful in terms of how this may implicate an obligation to pay overtime. Employees cannot volunteer their time to work, if that work is similar to their regular work duties. If an employee works more than 40 hours in a work week, she is entitled to overtime; even if she said that she would waive overtime. The FLSA does not permit employees to waive their rights to overtime. Later, if this employee brings a claim for back wages for the time that was “volunteered,” the employer will be obligated to pay this overtime, along with other damages and court costs.
An employee that works extra hours does not necessarily pose a problem, if you are willing to permit overtime payments for this work. If you do not want to pay overtime, you must find other ways to keep your employees from working beyond the 40 hours by, for example, redistributing work, bringing in temporary help, etc.
This article is a general discussion of overtime requirements and is not intended to provide legal advice regarding a particular situation. Overtime issues are complex and very fact-specific. Schools are encouraged to seek specific legal advice regarding compliance with the FLSA and other employment laws and regulations. ?
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Jill K. Osborne, Esq., is a partner with the law firm of Udall, Shumway & Lyons. Jill’s practice is primarily focused on school law and employment law. She can be contacted at jko@udallshumway.com or
(480) 461-5300.
|
