Home Business ManagementEmployment Law Q&A: Overtime Violations

Q&A: Overtime Violations

by Peggy Emch

The FLSA can be a tough read. Here are some common questions to help businesses avoid overtime violations.

Question & Answer

Q: A friend of mine said that when her employees work more than 40 hours she compensates them with comp time. I mentioned this to a colleague who said this isn’t legal. Who’s right here?

A: Unless your friend works for the government she cannot legally substitute compensatory time off for overtime pay. Employees in the private sector(that means everyone that is not a government employee) must be paid in cash for the overtime they work.

Q: Is it ok for my employees to take work home and finish it on their own time? They don’t always manage to finish their daily duties at work so they take it home to catch up for the next day.

A: If they record their hours and you pay them for the overtime, then sure it’s ok. But be advised that the FLSA states that any work performed over 40 hours is overtime and must be paid as such. All work performed off site must be included in actual hours calculation. Web-based time sheets make it easy to keep track of non-standard working hours.

Q: My employees need to take a little time to set up before they start work but now they’re complaining that I don’t pay them for their whole shift. Am I wrong here?

A:It depends on what the activity is. If they are checking their personal email before work and grabbing a cup of coffee, then no, you don’t have to pay them, but if they are starting up the computer they use for work, loading up the programs they need for their job, looking over their to do list for the day, etc. they need to be paid for that time. Those are work related duties, even though they may not be the primary work duties.

Q: Occasionally our company records local bands at night. It is pretty fun work – it doesn’t really seem like work at all actually. Do I really have to pay them for these events?

A:Yes you do! Work is work, whether it’s in a cool environment or not. Unless you have a volunteer sign up sheet where employees could truly choose to attend or not, where there is absolutely no trace of coercion (proving that these events are strictly voluntary in court might be difficult), then you’ll need to pay your employees, and if the event kicks them into overtime, you’ll need to pay them time and a half.

Q: My business is new and we don’t have a whole lot of money yet. I need a lot of help but only have enough to pay each employee $400/wk. I don’t track hours or anything but I pay them all the same just to be fair. Honestly, I don’t think they work more than 40 hours very often so it can’t be too big of a deal right?

A: Your employees make less than $455/week so they definitely don’t qualify as salaried employees (most type of workers don’t anyway) they are hourly employees. It is the responsibility of the employer to make sure his hourly employees track their hours and get paid for those hours worked.

Q: All of my employees are on salary so I pay them for 40 hours no matter if they work less than this or more. This is ok right?

A: As long as your salaried employees are classified correctly it is. But employers often mistakenly classify their employees as salaried when they are actually hourly. You can check the requirements on the FLSA website.

Q: We have an employee that stays late all the time and keeps tipping into overtime week after week. We don’t authorize overtime here which we have clearly stated in the employee handbook. I don’t have to pay him for those hours right?

A:Wrong. You do have to pay employees for overtime regardless of whether or not it was authorized. Working unauthorized overtime is a performance issue, though, and may be dealt with using a disciplinary action letter. If the problem continues, you may terminate your employee, but until that day, you must pay overtime.

Q: One of my employees sometimes arrives late to work and then makes up for it when he can at a later date. It seems to all even out in the end. Is this fair?

A:It is if he makes up for the time on the same week that he was late. If he makes up for the time on the next week, and it tips him over into overtime, then he needs to be paid for the overtime hours.

Wage and Hour
Overtime Violations
Fair Labor Standards Act FAQ

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Kelly March 13, 2013 - 10:54 am

Can you add in a Vacation day to make a 40 hour week and then pay overtime?

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Hi Kelly,

Vacation time is not included in overtime calculations. Overtime is calculated for actual hours worked. Adding a vacation day onto your 40 hour work week would not give you overtime.


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