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The requirement laws about overtime pay for employees seem simple enough: once a nonexempt employee has worked 40 hours in a single workweek, each additional hour worked must be paid at time and one-half the regular rate of pay. Yet, many employers are confused about the mechanics of implementing the laws about overtime pay, such as how to calculate overtime pay when a nonexempt employee is paid a salary or works two jobs.
This confusion can be expensive. The Department of Labor (DOL) recently issued enforcement data for Fiscal Year 2008 (FY 2008) which showed that the agency collected over $123 million in back wages for overtime violations under the Fair Labor Standards Act (FLSA). The violations covered over 10,000 wage claims involving almost 183,000 employees and represented 88% of the claims filed with the DOL. The DOL also assessed an additional $3.1 million in civil penalties against employers that violated the FLSA.
Clearly, noncompliance with overtime pay regulations can be expensive. In our two part series on this issue, we will address ten of the most common overtime pay questions to help you ensure your organization does not end up on the wrong side of a wage claim. In this first post, you will find out what the basic overtime regulations and requirements are, whether overtime must be paid for weekend work, and how overtime pay is calculated. Next, we will explain when overtime pay has to be paid in holiday or vacation weeks, whether compensatory time off can be given instead of overtime, when unauthorized overtime should be paid, and what the penalties are for noncompliance.
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1. What are the basic overtime pay regulations?
The FLSA requires covered employers to pay nonexempt employees who work more than 40 hours in a single workweek at least one and one-half times their regular rate of pay for each hour worked over 40. (See 29 U.S.C. §207(a)(1).) "Nonexempt" refers to all employees covered by the minimum wage and overtime requirements of the FLSA, i.e. those who are not exempt from it.
For purposes of determining overtime compensation, the FLSA uses a single workweek as its standard and does not permit averaging of hours over two or more weeks. So, if an employee works 30 hours one week and 50 hours the next, he must receive overtime compensation for the ten hours he worked in excess of 40 in the second week, even though the average number of hours worked in the two weeks is 40. In addition, according to the Supreme Court, employees are not permitted to waive their rights to overtime compensation under the FLSA.
2. Does federal law require daily OT or overtime pay for weekend work?
No. The FLSA does not require pay at the overtime rate for hours worked in excess of eight per day, or for work on Saturdays, Sundays, or holidays, as long as the employee has not worked more than a total of 40 hours in that workweek. (See 29 C.F.R. §778.102.)
A few states, however, have more restrictive overtime pay regulations and require employers to pay overtime on a daily basis. For example, in addition to weekly overtime, California requires employers to pay daily overtime at the rate of one and one-half the regular rate of pay for all hours worked over eight in a single day and at double the regular rate of pay for all hours over 12 in a single day. In addition, time and one-half must be paid for the first eight hours worked on the seventh consecutive day of work, as well as double time for all hours over eight worked on that day. Accordingly, you should check your state overtime requirements.
3. Is there a limit on the number of overtime hours an employee can work?
Not under federal wage law. The FLSA and its regulations do not limit the number of hours that employees may work in any workweek. Employees may work as many hours a week as they and the employer see fit. (See 29 C.F.R. §778.102.)
A few states do have limits on the number of hours employees can work. For example, in Maine, employers may not require employees to work more than 80 hours of overtime in a two-week period, except for certain "essential services" employees. And West Virginia limits the amount of overtime employers may require nurses to work.
4. How is overtime pay calculated?
The first step to calculate overtime pay is to determine the employee's regular rate of pay. The FLSA defines the "regular rate" as all remuneration for employment paid to or on behalf of the employee, before any deductions from wages are made, although some items of compensation do not have to be included in the calculation. (See 29 U.S.C. §207(e); 29 C.F.R. §778.109.)
Even though nonexempt employees do not have to be paid only on an hourly basis, in order to calculate overtime payments, the regular rate must be stated as an hourly rate. So, for employees not paid a regular hourly rate (like those whose compensation is determined on a piece-rate, salary, or commission basis), the regular hourly rate is derived by dividing the total compensation by the total number of hours actually worked. In addition, certain bonuses and incentives (like those dependent on hours worked, productivity, or efficiency), and extra pay for shift differentials or "dirty work" generally must be considered in calculating the employee's regular rate. But other types of compensation, like discretionary bonuses and some premium pay for weekends or holidays, are excluded from an employee's regular rate of pay and, therefore, do not affect the overtime pay rate.
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5. What if a nonexempt employee works two jobs?
Calculating overtime pay can be a little tricky when an employee works two or more jobs for which the employee is paid different hourly rates since overtime must be based on the employee's "regular rate of pay." Typically, according to the FLSA regulations found at 29 C.F.R. §778.115, the employee's regular rate of pay when he works two jobs is calculated as the weighted average of the different rates.
For example, the regular rate of an employee who works 35 hours per week at $15 per hour as a machine operator ($525), and works 10 hours that same week at $8 per hour cutting the grass outside the plant ($80), is $605 divided by 45 hours or $13.44 per hour. The overtime premium owed the employee is an additional $6.72 ($13.44 divided by 2) for each hour over 40, regardless of which job the employee performs during the extra hours. (The employee in the example has already been paid straight time for the first 5 overtime hours up to 45 and is only entitled to the additional "half" of the time and one-half of overtime pay on the balance over 40.) Accordingly, the employee would be paid an additional $33.60 in overtime ($6.72 times 5 hours), so that the employee's total pay for the week would be $638.60 ($605 straight time pay plus $33.60 overtime premium). The employee's regular and overtime rates may vary from week to week with the number of hours spent performing each job.
Alternatively, as explained in the FLSA regulations at 29 C.F.R. §778.419(a), an employer and employee may agree, before the work is performed, that the overtime rate will be based on the regular rate that applies to the type of work performed during the hours in excess of forty. Therefore, if an employee spends 35 hours in a week working as a machine operator at $15 per hour, and five hours a week cutting the grass at $8 per hour, the overtime rate for any additional hours spent cutting the grass is $12.00 per hour ($8 times 1.5). Conversely, the overtime rate for any additional hours spent working as a machine operator is $22.50 ($15 times 1.5). This method of computation is available for hourly employees only and does not apply to nonexempt salaried employees.
Next week’s issue: When overtime has to be paid in holiday or vacation weeks, whether compensatory time off can be given instead of overtime, when unauthorized overtime should be paid, and what the penalties are for noncompliance.
Robin Thomas, J.D.
Personnel Policy Service, Inc.
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