Overtime
dcastaneda
24 Posts
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!
Comments
She can discipline the employee for going over the maximum hours but she HAS to pay it if it was worked.
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
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.
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?
And yes, I do report to this DO as she is also the CFO.
"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.
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.
Stanley P. Santire, J.D.
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.
And document to cya.
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.
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.
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 . . .
>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)
>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.
>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.
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.
But it is a strategy that must be used sparingly and only for important things lest it's effectiveness be diminished by overuse.
(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?
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.
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.
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.