Comp. Time and Overtime: Only After 45 Hours of Work a Week?

Things have been busy at PayScale - we have been adding new features to our flagship professional product, PayScale Insight, and our Research Center - so I haven’t had as much time to post on salary issues.

I did respond to a reader’s question about overtime; others might be interested in the question and answer:

I get paid a annual salary of $40,000. I am a maintenance person. I work on AC units and furnaces; I paint; I am a jack of all trades and a master of none. I work around 5 to 6 hrs overtime a week.

My employer says I can't get comp time until 45 hrs a week have been met; is this legal? I only get 1 hr comp time over 45 hrs. Should I get 1 1/2, if it is legal to allow the comp time over 45 hours? This must mean I’m non-exempt right? If I confront them with this issue, can they say you are exempt and work me to no end? Help!

These questions are about the federal Fair Labor Standards Act (FLSA): what is a legal use of over-time, comp. time, etc.?

In this post, I will answer these, and also take a quick look at what FLSA says about breaks and meal time.

Wondering if you should be earning $40,000/year, like our "Jack" of all trades? Use the PayScale Salary Calculator to find out.

Really, I am still not a lawyer

I am still not a lawyer, and this post is not legal advice. I am also only discussing federal law: state laws are often much more stringent than federal law on pay practices.

If you have serious concerns about how your employer is paying you, consult a labor lawyer or the federal Department of Labor or your local state Department of Labor.

See the previous posts for caveats and sources. See even earlier posts for the difference between exempt (hourly) and non-exempt (salaried) workers under federal law, in particular the Fair Labor Standards Act (FLSA).

Since "Jack" is paid $40,000 per year, that means he is promised ~$800 per week (50 x $800 = $40,000), or about $20/hour. Since this is well above federal minimum wage, his employer could follow the rules for “salary non-exempt” and only pay a little extra when Jack works overtime. My post on "Salaried, non-exempt" discusses how the employer could pay the least amount for overtime, legally, in a situation like this.

Easy Question: Could this Job be Exempt?

First to answer the easy question: given the role of maintenance person, with no management, professional, sales, administrative, or other "exempt" duties, there is little chance this job could be classified as anything other than a "non-exempt" position. Hence the Fair Labor Standards Act overtime pay rules (1 1/2 pay for more than 40 hours) applies.

The way the employer describes pay, e.g., annual salary, hourly, weekly, etc., does not affect FLSA exempt vs. non-exempt status. It is the duties of the job. While all jobs can be non-exempt (subject to FLSA overtime rules) by employer decree, only specific jobs can be made exempt based on rules in the law. This job is not one of them.

45 vs. 40 Hours: Are Lunch and Snack Breaks Work Time?

The first odd part is the employer’s insistence on comp. time (compensatory time) only after more than 45 hours per week. The law is very explicit:

  • After working 40 hours in any one week,
  • 1.5 times the regular hourly rate has to be paid for any additional time worked

The key here is that all the hours have to be "working." There are many special cases, but the only one I could think of for this job is that the employer is assuming Jack is taking a one hour lunch break each day.

As explained by the Department of Labor, lunch breaks, with no work responsibilities, of 30 minutes or more do not have to be considered "work time" for pay purposes. An employee is "off the clock."

However, short breaks of less than 20 minutes generally are considered work time. That time must be counted towards total time worked in a week.

If Jack is taking an hour for lunch each day, he may be "at work" from 8 to 5 every day, 5 days a week, for a total of 45 hours, yet only "working" for 40 hours each week.

If this is the case, since Jack is not paid for this lunch hour each day, he should be sure not to work at all during this time.

Is Comp. Time Legal?

The final question is about whether Jack can be "paid" in comp. time instead of overtime wages.

As noted above, the federal rules are that if Jack works more than 40 hours in any 7 day work week, Jack needs to be paid overtime. The starting day of the work week can be picked by the employer, but needs to be the same each week.

There is no per day maximum. For example, no overtime pay is legally required for Jack to work 15 hours on Monday, 15 hours of Tuesday, 10 hours on Wednesday, and then have Thursday and Friday off as "comp time."

However, there is also no carrying over to the next week. For comp. time to be legal, instead of overtime pay, the time off would have to come in the same week as the extra time was added to be within the FLSA rules.

If Jack is working 50 hours one week, he needs to be paid 1.5 time for the extra 10 hours, even if he only works 30 hours the next week (for a total of 80 for two weeks). Of course, the employer only needs to pay Jack for the 30 hours worked in the second week, but the net result will be that Jack will be paid more for working 50/30 than for working 40/40.

With or without overtime, are you being paid what your worth? When you want powerful salary data and comparisons customized for your exact position or job offer, be sure to build a complete profile by taking PayScale’s full salary survey.

Cheers,

Al Lee

Comment




  1. Please prove to us that you're not a robot: