Overtime

I have been round and round with our Director of Operations on this issue. We have an EE that worked 44 hours in one week but she refuses to ok his OT pay. She tells me to just put 4 hours toward his next week and she will let him know that he cannot work over 36 horus stating that our policy is not to pay overtime. She absolutely refuses to sign his check with the overtime and has told me to reissue his check with only 40 hours or pay him 44 hours at straigt time. In good conscience I feel I just cannot do this; I did not think that is legal or in the best interest of the company. HELP!
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Comments

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  • I believe it is required by the DOL to pay the overtime if it was actually worked. This is NOT an option that the Director of Operations can arbitrarily decide.

    She can discipline the employee for going over the maximum hours but she HAS to pay it if it was worked.
  • Exactly right on target. This isn't at the Dir. of Operations discretion. You need to explain this to her that whether OT is approved or not, if it is worked it has to be paid according to the FLSA (and any state regulations, if any.) You may have to show her the law. Explain that if employee is non-exempt, can't "take over" time to next week. The company could be fined and addtiional payments made to employee if done incorrectly. Your purpose in being there is to help her not only stay out of trouble, but hopefully make life easier for her not to have to remember all these rules and regulations.
    She can talk with employee and discipline them and tell them they are not to work any further ot without her written approval and if done, could be disciplined. (However, then she will have to pay it to them whether or not she owes it and discipline after.)
    I am assuming there is a time clock involved here and she isn't questioning the actual hours the person work. (Not saying they fudged time, which is a totally different issue.)
    Try to present as you are trying to help, not police or tell what they can and cannot do.
    Good luck.
    E Wart
  • Of course it is not legal. But, if the DO is in charge, protect yourself with a memo. Really, nothing you can do if you can't convicne the powers that be to do the right thing.
  • [font size="1" color="#FF0000"]LAST EDITED ON 06-04-04 AT 08:35AM (CST)[/font][br][br]Tell your DO that it is a FEDERAL LAW to pay the OT if worked. Nothing she can do about it. I would refuse to redo a check that I knew was wrong and illegal. Explain to the DO that the employee can call the DOL to complain and the company would be MADE to pay the OT and more than likely a FINE for willfully disobeying the law.

    I'm very straight-forward. I would talk to the DO and get them on the right track. If they still REFUSE to obey the law, then I would type up a Memo explaining the situation as suggested by Shadowfax and have the DO sign it taking responsibility for the situation. But that would be a LAST RESORT.
  • I agree with the other posts, and based on what you've told us, the employee would certainly win and your company could be fined, especially for willfully disregarding the law, plus the bad employee relations from forcing this employee to formally file paperwork. Other employees will take note also.

    One option may be to see if both the employee and your DO would agree to comp time. Not having a policy in advance is a glitch, and it is VERY important that the employee not be forced into this agreement, and that he receive comp time at time and a half, or in your case 6 hours of comp time.

    Or, assuming you don't report to the DO, I would advise her that you have no choice but to report her request to a higher level, since you are convinced this request is not legal and would place your company in jeopardy. Hopefully, she will come to her senses.

    Is this the first time this has ever come up? Has the DO refused to ok other employees' OT in the past? Had she told this employee in advance not to work OT, and he did it anyway? What reason is she giving you not to pay the OT? Is there more to this story?
  • No, this is not the first time her "blanket reply" is that our policy is not to pay overtime (this is not in writing but I always was under the impression that policy or not, over 40 had to be paid OT) that is why she has made all regular EE exempt and pays a salary as oppose to an hourly rate.

    And yes, I do report to this DO as she is also the CFO.
  • Regarding your post from this morning "that is why she has made all regular EE exempt and pays a salary as oppose to an hourly rate", are you saying this person is considered to be an exempt employee? If that is the case, then overtime is not payable. I think we were all under the impression this was a non-exempt employee, who IS entitled to OT compensation.

    "That is why she has made all regular EE exempt and pays a salary..." raises an even greater concern for you. Paying someone on a salaried basis is only a part of declaring someone to be exempt from OT pay. If your organization has mis-classified employees as exempt and denied them OT pay, you could be looking at serious lawsuits and fines for more than this one person.




  • No, this EE is hourly.

    She has classified all regular full time EE as expemt and salary. (I have more than once explained to her that this is not legal and shown her the regs on this and she continues to tell me that I am miss reading them; it really is impossible to get her to understand.) Basically, I know what will eventually happen as long as she continues to over ride my suggestions but I want to be able to CYA as well as try to get the EE what he deserves.
  • All of the replies have been right on point. Let me make a suggestion that might keep your DO happy. The employee worked four hours overtime. At the premium pay rate the employee is entitled to the equivalent of six hours (1.5 x 4 = 6). Your DO wants to dock the employee only four hours a following week. The DO may find payment of the overtime more comfortable if you point out that you can keep the employee to 34 hours rather than 36 during a following week. In this way you wind up paying the same as if the employee had worked 40 hours each of the two weeks. Remember, as has been amply pointed out in other replies, you must pay the employee for hours worked, including overtime for excess of 40 in any particular week. However, you control the number of hours worked. Though the law mandates overtime over 40, the law does not require that an employee work the full 40; i.e. you cannot control the rate for overtime, you do control the number of hours worked.
    Stanley P. Santire, J.D.
  • [font size="1" color="#FF0000"]LAST EDITED ON 06-06-04 AT 10:48AM (CST)[/font][br][br][font size="1" color="#FF0000"]LAST EDITED ON 06-06-04 AT 10:47 AM (CST)[/font]

    If you have a bi-monthly pay period that encompasses two entire work weeks only, FLSA regs do allow the following:

    If more than 40 hours is worked int he first work week, the employer may have a policy or practice of taking the overtime hours worked and adjusting the second week in the pay period by allowing time off at time and a half but issuing the full week's pay. Thus, if the emplyee worked 44 hours in that first work week, the emplyer may adjust the work hours in the second work week of that pay period by paying for 40 hours of work, but having the meplyee only work 34 hours (4 hours overtime and 2 hours for the half time).

    It may only be done within the pay period and only when the overtime is worked in that first work week.


  • This particular EE is worked PRN throughout the year except for the summer which he works full time; we have a bi-monthly pay period which is a bit of a pain for calculating OT. Our work week is Mon - Sun but our pay period may end in the middle of the week; however, I have to track the whole week for OT purposes.
  • Regardless of what your employee says, you cannot carry over the hours. The employee must be paid overtime for the 4 hours. If your employee will not do so, s/he should be disciplined. If it is a problem that the employee did not receive authorization prior to working over 40 hours, s/he can also be disciplined. But s/he must be paid.
  • Although the solutions offered would work, I don't see the problem as one of how to satisfy the CFO that the overtime payout has, through formula and bookkeeping gymnastics, been recovered the following week. Rather the problem is one of ignorance of the law. If the DO/CFO will not listen to your telling her it is the law, order one of the pamphlets from the Wage Hour Administration and hand it to her, or a complete copy of the Code of Federal Regulations. Tell her your interest is in knowing that the company doesn't violate the law and encounter penalties of any sort.

    And document to cya.
  • The only way you can "carry over" hours is to have them work four less hours the next week, but ONLY if it's within the same pay period.

    It doesn't matter that there is a company policy that you do not allow overtime. The law essentially states if the employee works it (regardless of whether they had permission or even if they were told not to, you STILL have to pay them). They can be disciplined or even terminated for not following policy, but they have to be paid for working for the employer.

    Your CFO needs to take a crash course in Wage & Hour law or your company is going to suffer a Wage & Hour audit in the near future.


  • Your CFO will not have trouble grasping the concept that working 6 less hours the following week will make his budget variance go away. IMHO, the CFO is struggling with the approval process being circumvented to have to pay the OT. He/she probably thinks since the OT was not approved it cannot be paid.

    Don's advice about the pamphlet is the way to go. With linear thinkers, seeing it in black and white will make the difference. Then let them know you will help keep their cajones out of the fire with all of this HR MUMBO JUMBO. (Remember that?)

    Become the CFO's source for all things HR and use this as an opportunity to build trust in your skills, training and expertise.
  • One other thing you may want to mention to this director - if the employee complains to the DOL it's not just having to pay him the OT of 4 hours and any penalty. The DOL will most likely come on over to your place for a few fun filled weeks of auditing your payroll records. And it won't be a friendly, let's sit and have some apple pie and coffee kind of audits. It will be an out for blood audit.

    My very first HR job many moons ago started just three weeks before the DOL sent notice that they were coming by to audit our records based on an employee complaint. Cost the non-profit org I was working for over $350,000 in back overtime, plus penalty - and we were lucky, they just went back the one year. (our OT was because some supervisors were misclassified as exempt and they worked bookoo OT hours) (is bookoo a word?)

    AND, the DOL has a nice little arrangement with INS and can also take a look at your I-9's while they're visiting. So be prepared for a double whammy.

    Best of luck to you . . .
  • >One other thing you may want to mention to this
    >director - if the employee complains to the DOL
    >it's not just having to pay him the OT of 4
    >hours and any penalty. The DOL will most likely
    >come on over to your place for a few fun filled
    >weeks of auditing your payroll records. And it
    >won't be a friendly, let's sit and have some
    >apple pie and coffee kind of audits. It will be
    >an out for blood audit.
    >
    >My very first HR job many moons ago started just
    >three weeks before the DOL sent notice that they
    >were coming by to audit our records based on an
    >employee complaint. Cost the non-profit org I
    >was working for over $350,000 in back overtime,
    >plus penalty - and we were lucky, they just went
    >back the one year. (our OT was because some
    >supervisors were misclassified as exempt and
    >they worked bookoo OT hours) (is bookoo a
    >word?)
    >
    >AND, the DOL has a nice little arrangement with
    >INS and can also take a look at your I-9's while
    >they're visiting. So be prepared for a double
    >whammy.
    >
    >Best of luck to you . . .

    Bookoo is a word, but I believe it's spelled beaucoup. (I like your version better, though)



  • I think boocoo is short for boocoodle, which I was raised to understand meant 'a bunch' or 'a passle'.
  • >I think boocoo is short for boocoodle, which I
    >was raised to understand meant 'a bunch' or 'a
    >passle'.


    Now this is a bit of info I have always wondered about. Thanks guys and gals. :)



  • Thank you for this it of info. I have, for now, I believe kept this EE happy; he is a ACH so he does not get a check that requires her signature therefore I disregarded my CFO denial and paid him the OT. For now I may have kept the company butt out of the sling but mine maybe if she finds out. Then I will use the stats that you provided me with to back up my "insubordination."

  • >therefore I disregarded my CFO denial and paid
    >him the OT. For now I may have kept the company
    >butt out of the sling but mine maybe if she
    >finds out. Then I will use the stats that you
    >provided me with to back up my
    >"insubordination."


    That is exactly what you will be guilty of. Several of us recommended a positive approach to your dilemma yet you chose to ignore your manager's directive and we must assume you ignored the advice regarding educating your manager in a professional manner. Let me know where to send the vaseline.
  • I tried the positive approach and it got me no where, she continued to repeat to me that we do not pay overtime, period. I showed her the FLSA regs, she told me that I am not reading them right. What else could I do, this EE knew he had OT.
    By the way, this is the same person that says we are too small to worry about I9's as well, yet I continue to require them on all new hires regardless. We do not have them on any person hired prior to my start in 2001.
    She is not open to any kind of explanation, her word is law around here. You have to know her to know what I am dealing with.
  • Sometimes it is better to beg for forgiveness than to ask for permission.

    But it is a strategy that must be used sparingly and only for important things lest it's effectiveness be diminished by overuse.
  • Re Hatchetman #7 post. I've come to rely on y0ur expertise w/the FLSA, but you have me concerned with this one. Are you saying you can do this w/o a 1040/2080 plan, and all the hoops that come with it?
  • [font size="1" color="#FF0000"]LAST EDITED ON 06-15-04 AT 06:02PM (CST)[/font][br][br]Sorry Marc, but I just cannot buy selective obedience to direct orders. Unless I am prepared to quit or be fired, or blow that person in and have him/her fired, I can't imagine languishing in a job of situational insubordination. Castenada needs to look for another place of employment.

    (edit) Sorry, I was thinking in parallel sentences. I meant to say 'blow the whistle on that person'. And I was also thinking 'turn that person in'. What can I say?
  • That is why the strategy must not be overused. Anyone in a decision making capacity faces the risk of being fired or quitting. It comes with the territory.

    And yes, I have lost a job and quit a job from making decisions like this. In each case, the CEO was not available to consult and judgement calls had to be made. I made the calls and dealt with the results.

    This is not some devious plan to hide things from those above you or beside you in the chain of command. I do not suggest a strategy like this lightly and I would bet that many forumites have followed this strategy more than once.

    And Don, I would find it hard to believe that you have not done this yourself.

  • Meeee? Disobey an order or defy authority?

    Seriously; I am talking about a manager who has stated a policy of doing or not doing certain activities that are broad directives: We will not complete I-9 forms. We do not and will not ever pay overtime, period. Though both either are or will become illegal practices, I would not simply slink off and do as I pleased. Surely anyone can come to re-evaluate their illegal position if popped between the eyes with a two by four.
  • Boy, I agree. Why wouldn't it be better, or at least more prudent, rather than be insubordinate, to say to the emp/ee, "...the decision has been made, it's out of my hands, I know you disagree, here's the # of the wage and hour people, you can always have them take a look..' or just direct the emp/ee to the poster..
  • While this incident is history, dcastaneda, what do you do next time? Your original post was clear that your boss gave you clear instructions which you disregarded, even though you were right. If your job should be threatened and you appeal to her bosses, while they may appreciate the fact that you probably did the right legal thing, they won't be appreciative of your "insubordination", and probably will say you should have come to them first. You need a plan for the future.

    If Hatchetman is still following this thread, I would like to know what CFR regulation allows what he recommended in Post 7. (Shadowfax also had questioned this, although I'm not familiar with "1040/2080".) CFR 778.104 "does not permit averaging of hours over 2 or more weeks." There are FLSA exceptions for Police and Fire employees and some medical staff.

    My point is if Hatchetman is right, then what the CFO requested is okay to do, more or less, although Hatchetman will have to tell me the reg # that covers this.

    It seems to me that you've made an above average attempt to protect your company from an illegal action by advising your boss, hopefully in writing for CYA purposes. If your structure does not encourage an appeal to the CFO's boss, then, when this happens again, and it will, then do what your boss says, and let the chips fall where they will, which should be on the CFO's head, not yours.
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