Overtime is a Weekly Determination

December 20, 2017

Employers find all sort of “creative” ways to shirk their legally obligated responsibilities to pay employees overtime at a rate of at least one and a half times their regular rate of pay for hours worked in excess of forty in a workweek.  While the employers may consider their ideas original, the reality is most often another repetitive, run of the mill, and reprehensible attempt to cheat their employees.  One of the most common and banal ways employers attempt to avoid their overtime obligations is to “borrow” those hours from the future.

These schemes may involve more or less complex mathematics to pull off, but the equation always comes out the same way: employees making less money than the law requires.  The simplest of these systems is to pay employees across two weeks and only pay overtime if the employee works more than eighty hours in those two weeks.  If the employee works more than forty hours in the first week then the employer makes the employee work less than forty hours in the second week.  The Fair Labor Standards Act (“FLSA”) expressly prohibits such a pay scheme in almost all circumstances.

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For Example, if in week one you worked 50 hours and week two you worked 30 hours, the employer may try to say for the two week pay period it’s a total of 80 hours, so no overtime is owed.  In fact, you would be owed 10 hours of overtime for the first week of pay.

The more complex way an employer may try and fail to avoid the FLSA’s liability is to attempt to compensate overtime with promises of additional paid time off in the future.  This is often called comp-time or banked time and is again prohibited by the FLSA in most circumstances.

Not only do the FLSA and many state wage and hour laws expressly prohibit these attempts to short wages, but also when employers make these attempts they frequently commit other overtime violations as well.  Employers may claim to require the employee to work fewer hours in the second week to make up for the overtime hours worked in the first week, but in reality, the employee works just as many hours and is not paid for every hour the employee works.  Alternatively, an employer may promise days off in exchange for overtime, but make it so impossible to use or computes the days off in such a way that the offer become meaningless.  After all, an employer who is unscrupulous in one manner is likely unscrupulous in multiple manners.

If you work for an employer who uses some method to compensate hours worked in excess of forty in a workweek that is different than one and a half times your regular rate for each hour over forty in a week, you should consult with an FLSA Lawyer or overtime lawyer who can educate you about your employment rights.