I reazlize that maybe it was not right to disregard my CFO instuctions, honestly, I would probably, given the same scenerio have done that again, however, I know I will not in the future.
I have since had a long, hard talk with the EE and reminded him that any further OT is not permitted and next time this occurs, if not pre-approved by his supervisor, will result in disciplinary action. I have also spoken with the supervisor and once again brought to his attention the policy of no OT.
If in the same situation again what would I do, I am not sure. I agree with Marc that an isolated incident will probably be forgiven but repeatedly will not. I too would like to know more about what the Hatchetman is referring to, maybe that could shed more light on a loop hole that I was not aware of.
My plan next time I think is to have that EE talk with CFO and let her battle it out with that individual; then I will ask the CFO to give me the dispostion,in writing. I do know that I would not give a FLSA contact number to the EE; that would make things even worse.
I would like to say it won't happen again, but I think I would be fooling myself. Also, I appreciate all of the advice and criticism, even the negative ones.
The 1040/2080 plans are availa ble only to unionized emp/ees, and, only under very strict conditions with certain minimum gurantees (29USC 207(b). I can't imagine anyone using them because they have always appeared to be an enormous accounting headache to me (maybe reg778.602 gets you there quicker). I'm sure the axeman will show up soon and straighten us out.
[font size="1" color="#FF0000"]LAST EDITED ON 06-17-04 AT 02:39AM (CST)[/font][br][br]The compensation mechanism for overtime that I mentioned above and that one or two others have mentioned, is not specifically addressed in the FLSA regulations in Part 778.
However, DOL in various Opinion Letters since the late 60's has identified what it calls a Time Off Plan".
The follwing is from an Opnion Letter issued in May 1994 that describes the way it is done. The fact that it is responding to an inqury about salaried, non-exempts is not relevant since the Opinion addresses FLSA Overtime and time off:
"In order for your client's nonexempt salaried employees to receive the same bi-weekly pay each pay period under a time-off plan, the employer must lay off the employee a sufficient number of hours during some other week or weeks of the pay period so that the desired wage or salary for the pay period covers the total amount of compensation, including the overtime compensation, due the employee for each workweek taken separately. For example, in the work period described in Schedule A where the employee has worked 48 hours in the first week, the employer must calculate and pay for eight hours of overtime premium pay for that week. In the second week of the pay period, the employer must lay-off the employee for 12 hours (8 hours x 1.5 = 12 hours) in order for the employee's bi-weekly salary to remain the same. Likewise, in Schedule H where the employee has worked 60 hours in the first week, the employer must calculate and pay for 20 hours of overtime premium pay. In this example, it would be necessary for the employer to lay-off the employee for 30 hours (20 hours x 1.5 = 30 hours) in the second week of the pay period for the employee's compensation for the work period to remain constant."
Let me add another Opinionn Letter reference to the Time Off Plan. It was issued in July 1994. Even though it tells the inquirer that the emplyer's approach is wrong, it does reference the proper way to do the Time Off Plan:
"We have reviewed your client's proposed time-off plan and have found that the plan is not in compliance with the overtime pay requirements of the FLSA, since the total amount of compensation due any employee under the plan does not include the proper amount of overtime compensation due the employee. For example, if we assume that the employee's regular rate of pay is $10 per hour, the employee is due $662.50 for the first week of the two-week period ($10 x 57.5 hours = $575 straight time earnings plus one-half $10 = $5 x 17.5 overtime hours equals $87.50 overtime earnings). In the second week of the pay period the employee is due $230 ($10 x 23 hours). Total compensation due for the two week period is $892.50. Under the FLSA when calculating overtime pay due an employee each workweek stands alone. Therefore under a time-off plan, overtime pay must be calculated and paid for in any workweek of the pay period in which it is worked. The essential principle of the time-off plan is the controlling of earning by controlling of the number of hours an employee is permitted to work."
Again, the difference between the "Time Off Plan" and prohibited Comp Time for non-exempts is that in the Time Off Plan the time off MUST be taken within the same pay period that the overtime was worked and it must be at time and a half.
Thanks Hatchet. Now that I cgo back to your original post - you stated it so simply you blew it by me. Regarding the posters situation, she must still pay the O/T for the first week, she just gets to make up the difference by scheduling off the second week by 1 and 1/2. Is the Time Off Plan necessarily a developed policy? I don't understand why anyone couldn't use the procedure by simply adjusting the weekly schedule, assuming the emp/er had the right to tell when and how long an emp/ee could work, and most of us can. Kind of a poor man's comp time: you'll be paid this week for next week's unpaid comp time.
Yikes! If you survive this one, never, never do it again. You did your job in trying to educate her. If the DO still insisted on no OT, then so be it.
Nothing humbles a company executive like a wage and hour audit. Non payment of overtime, employees improperly classified as exempt, is the tip of the ice berg. Just picture her trying to explain to her boss or the BOD why the 6 figure fines were imposed.
This is one time it's too bad not to be in California. Your actions would be protected behavior and if you suffered any negative employment action for defying an illegal directive, your company would be in even more trouble than the wage and hour issue.
"I was just following orders" . . . doesn't that sound familiar to what's going on elsewhere? It's an excuse.
I would have badgered my boss until he bled from the ears or followed the law. That's just me. If he didn't come around, I would have done the right thing also and suffered for it later, which seems to be the path that dcastaneda has taken.
Comments
I have since had a long, hard talk with the EE and reminded him that any further OT is not permitted and next time this occurs, if not pre-approved by his supervisor, will result in disciplinary action. I have also spoken with the supervisor and once again brought to his attention the policy of no OT.
If in the same situation again what would I do, I am not sure. I agree with Marc that an isolated incident will probably be forgiven but repeatedly will not. I too would like to know more about what the Hatchetman is referring to, maybe that could shed more light on a loop hole that I was not aware of.
My plan next time I think is to have that EE talk with CFO and let her battle it out with that individual; then I will ask the CFO to give me the dispostion,in writing. I do know that I would not give a FLSA contact number to the EE; that would make things even worse.
I would like to say it won't happen again, but I think I would be fooling myself. Also, I appreciate all of the advice and criticism, even the negative ones.
However, DOL in various Opinion Letters since the late 60's has identified what it calls a Time Off Plan".
The follwing is from an Opnion Letter issued in
May 1994 that describes the way it is done. The fact that it is responding to an inqury about salaried, non-exempts is not relevant since the Opinion addresses FLSA Overtime and time off:
"In order for your client's nonexempt salaried employees to receive the same bi-weekly pay each pay period under a time-off plan, the employer must lay off the employee a sufficient number of hours during some other week or weeks of the pay period so that the desired wage or salary for the pay period covers the total amount of compensation, including the overtime compensation, due the employee for each workweek taken separately. For example, in the work period described in Schedule A where the employee has worked 48 hours in the first week, the employer must calculate and pay for eight hours of overtime premium pay for that week. In the second week of the pay period, the employer must lay-off the employee for 12 hours (8 hours x 1.5 = 12 hours) in order for the employee's bi-weekly salary to remain the same. Likewise, in Schedule H where the employee has worked 60 hours in the first week, the employer must calculate and pay for 20 hours of overtime premium pay. In this example, it would be necessary for the employer to lay-off the employee for 30 hours (20 hours x 1.5 = 30 hours) in the second week of the pay period for the employee's compensation for the work period to remain constant."
Let me add another Opinionn Letter reference to the Time Off Plan. It was issued in July 1994. Even though it tells the inquirer that the emplyer's approach is wrong, it does reference the proper way to do the Time Off Plan:
"We have reviewed your client's proposed time-off plan and have found that the plan is not in compliance with the overtime pay requirements of the FLSA, since the total amount of compensation due any employee under the plan does not include the proper amount of overtime compensation due the employee. For example, if we assume that the employee's regular rate of pay is $10 per hour, the employee is due $662.50 for the first week of the two-week period ($10 x 57.5 hours = $575 straight time earnings plus one-half $10 = $5 x 17.5 overtime hours equals $87.50 overtime earnings). In the second week of the pay period the employee is due $230 ($10 x 23 hours). Total compensation due for the two week period is $892.50. Under the FLSA when calculating overtime pay due an employee each workweek stands alone. Therefore under a time-off plan, overtime pay must be calculated and paid for in any workweek of the pay period in which it is worked. The essential principle of the time-off plan is the controlling of earning by controlling of the number of hours an employee is permitted to work."
Again, the difference between the "Time Off Plan" and prohibited Comp Time for non-exempts is that in the Time Off Plan the time off MUST be taken within the same pay period that the overtime was worked and it must be at time and a half.
Nothing humbles a company executive like a wage and hour audit. Non payment of overtime, employees improperly classified as exempt, is the tip of the ice berg. Just picture her trying to explain to her boss or the BOD why the 6 figure fines were imposed.
I would have badgered my boss until he bled from the ears or followed the law. That's just me. If he didn't come around, I would have done the right thing also and suffered for it later, which seems to be the path that dcastaneda has taken.