training overtime?
NaeNae55
3,243 Posts
My daughter works at a daycare facility in Kansas. To meet legal requirements, the employees have ongoing training they call "in-service." A certain amount of in-service hours is required for employees to keep their jobs. In-service hours are completed after regular business hours, and the employees are paid for them.
Sometimes the employer pays overtime, and sometimes not, but when my daughter questioned the HR person she was told they were doing it right. Here is what they do:
Scenario 1: Employee works 40 hours 1st week of pay period, attends 2 hours of in-service, and works 32 hours 2nd week and uses leave for balance of week. Employer pays 82 hours at regular rate (72 worked, 6 leave, 2 in-service).
Scenario 2: Employee works 40 hours both weeks and attends 2 hours of in-service 1st week. Employer pays 80 at regular rate and 2 at overtime rate.
I understand that training can involve special rate changes, but I have never heard of a facility being able to make overtime decisions in this way. Can someone please tell me if they are correct and where it says so in the FSLA (I have spent over an hour looking for it and have had no luck. x:-/)
I appreciate all responses. Thanks!
Sometimes the employer pays overtime, and sometimes not, but when my daughter questioned the HR person she was told they were doing it right. Here is what they do:
Scenario 1: Employee works 40 hours 1st week of pay period, attends 2 hours of in-service, and works 32 hours 2nd week and uses leave for balance of week. Employer pays 82 hours at regular rate (72 worked, 6 leave, 2 in-service).
Scenario 2: Employee works 40 hours both weeks and attends 2 hours of in-service 1st week. Employer pays 80 at regular rate and 2 at overtime rate.
I understand that training can involve special rate changes, but I have never heard of a facility being able to make overtime decisions in this way. Can someone please tell me if they are correct and where it says so in the FSLA (I have spent over an hour looking for it and have had no luck. x:-/)
I appreciate all responses. Thanks!
Comments
It is illegal for an employer to average weeks together when figuring hours worked and overtime due. No matter what the payroll cycle is, each week is a stand alone period for purposes of figuring the non-exempt employee's time.
In your scenario 1, for the first week, the employee is due 40 hours straight time and 2 hours overtime. The second week, assuming they have a paid leave program, the employee is due 40 hours straight time. Your first scenario two week pay stub should indicate a total of 80 hours straight time and 2 hours overtime.
In your scenario 2, the pay you state is correct.
Although companies may choose to pay on a bi-weekly or semi-monthly basis (depending on state pay laws), the calculation of overtime is done on a weekly basis (with the exception of CA, which calculates overtime daily).
The payment of overtime is governed nationally by the Federal Department of Labor, which enforces the Fair Labor Standards Act. In Kansas, the Employment Standards Office of the Kansas Department of Human Resources enforces the state wage & hour laws. In cases where federal and state labor laws differ, the employer is responsible for complying with the one of the two that better benefits the employee. Under federal laws employees need to be paid overtime for all worked hours over 40 in a week. Under Kansas law, overtime is due for all hours worked over 46 in a week.
I have attached a weblink to the Federal DOL section that discusses how overtime needs to be calculated on a weekly basis. I have also included a link to the Kansas legistlation that addresses state overtime requirements. It specifically states that it doesn't apply to employees covered under the FLSA, since FLSA is more beneficial to the employee.
[url]http://www.dol.gov/dol/allcfr/Title_29/Part_778/29CFR778.100.htm[/url]
[url]http://www.kslegislature.org/cgi-bin/statutes/index.cgi/44-1204.html[/url]
Your daughter should make an appointment to sit down with the HR person to discuss her wages owed. If I was her, I would print out the information above, and (as kindly and non-judgemental as possible) ask HR how soon I could expect the back overtime pay.
Good luck!
As far as being exempt from the FLSA, I have preiovusly adminstered payroll and benefits for a national child care chain, and unless there is something special about your daughter's center, they are not exempt from the FLSA.
There is one other possibility under 29CFR778.401, .402, and .403 establishing what is called the "Belo Plan" (from the Surpeme Court case on this issue). When by nature of the job, there are fluctuating horus of work each work week --so that one week it's under 40 and the next it's over 40 -- the employer can guarantee a rate of wage pay each week that isn't based upon those fluctuations. There has to be a written agreement betweent he emplyer and emplyee to do it and the maximum hours that can be worked in a week without paying time and a half overtime is 60. It's highly limited and requires specific conditions and computations. Maybe the employer's thinking is along this line. But if that's the case, it sounds like it would be wrong here too, given how you described the payment in the two scenarios.