Wages paid when earned

Cindy Coker

I'm trying to find the actual section number of the FLSA that requires that employees be paid for the hours actually worked during the week and which does not allow for averaging. For example, a company pays on a weekly basis for the previous week. If the employee works 36 hours one week and 30 hours another, the company cannot pay the employee for 33 hours each week. Can anyone help?

ACU Frank

I know this doesn't answer your question, but I'm curious... Why would you average the hours?

Cindy Coker

This employee is a part time employee and is, therefore, not supposed to work more than 31 hours a week. We are trying to determine if we can legally pay him 25 hours each week if he works 40 hours one week and 10 hours the next, hus keeping his weekly payable hours under the 31 hours. I don't believe so but I need the FLSA reg to verify.

ACU Frank

Generally speaking, occasionally exceeding the PT 'limit' is not an issue. If it happens week after week, there may be redress. Individual states may have statutes with stricter requirements, but in Missouri it wouldn't be a problem.

tmperry

It is my understanding - you must pay the employee for their "hours worked" in each pay week. Because this person is part time, depending on how your policy reads and how your state law reads, if you average his hours for a pay period and then cut them in half to obtain a weekly average and pay based on that - you could be cheating this employee out of benefits if he's running at higher hours. It could be looked at that you're trying to work around the system - which is definitely frowned upon. The DOL requires you keep accurate time records that match up with the pay records as well.

Sharon McKnight SPHR

The Fair Labor Standards Act (29 CFR 778.104) takes a single workweek as its standard and does not permit averaging of hours over 2 or more weeks.

Hope this helps.

Sharon