8-80 rule

sandra_d · February 2003

I work in a health care facility in MN and we use the 8-80 rule for overtime calculation ... we pay overtime if someone works over 8 hours in a day and when they work over 80 hours in a 2-week pay period. One of our supervisors believes that if a staff voluntarily agrees to (even asks to) work more than 8 hours in a day without getting overtime, that this is legal. I assured her that, no, following the 8-80 rule, we would owe overtime. She insists it is legal because that is what she and other hourly supervisors do for themselves "all of the time". (!!!YIKES!!!) I explained that just because she does it, doesn't make it right.

Anyway, she is convinced that there is an exception to this overtime rule, and I am convinced there isn't. However, I assured her I'd check into it and see what I can find. Anybody who believes that a voluntary opt-out of overtime law exists, please raise your hand and enlighten me! :~[

Thanks!

LindaS · February 2003

The law is clear that an employee (non-exempt) MUST be paid for every hour worked. Unless your supervisor is exempt, my advice is that you want to stop this type of thing immediately or face problems if you are ever audited.

Good Luck!

Pork · February 2003

"WHOA" IN MY 28 YEARS OF WORKING AND READING THE FLSA I HAVE NEVER COME UPON THE 8-80 RULE! This must be a state law, which may shed some light. I have re-read my copy of the index of FLSA and I find no reference to 8-80 rule. It is clear that any hours over 40 in the first week and any hours over 40 in the 2nd week determines that O/T is due. Depending on your research, you may want to quietly resign, and approach management with a great deal to find errors in your pay system and quietly tell management exactly how much money they owe each abused employee. With you getting a cut from management for saving the company big bucks for penalties, interest, and fees that they may be required to pay to the abused ees and the uncle sam pocket assessed by the audit team.

Keep us posted on what you find this should be real interesting and a learning experience for all the HRs in this network. I just can't wait to see your next post, tell us more how many and how long has this been going on?

Pork

Hatchetman · February 2003

Pork, the 8-80 rule is for hospital and residential care facilities and is established in the Fair Labor Standards Act regulations at 29CFR778.601. It basically allows the employee and employer to do away with the traditional FLSA work week and go with a 14-day period in which to calculate overtime PROVIDED overtime occurs after 8 hours of work in any one day or after more than 80 hours of work during the 14-day period.

I'm aware of it since I work in a health care agency, although we don't have it since we don't provide residential care and are a public sector agency.

Sandra, regarding the issue of an employee voluntarily giving up overtime, as noted by Linda, FLSA and DOL's enforcement clearly establishes that an employee MAY NOT waive overtime. That is to prevent an threats or compulsion by the employer -- such as, "give up getting paid overtime or you won't be working here." Take a look at the Code of Federal Regulations, volume 29, Section 778.316. The link is below. Show that to the supervisor.

[url]http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=29&PART=778&SECTION=316&YEAR=1998&TYPE=TEXT[/url]

sandra_d · February 2003

THANK YOU for the link - very (VERY!!) helpful!!

Pork · February 2003

Hatchetman: thanks for the re-education even "old dawgs" can learn new tricks. But how is that any different from the payroll scheduled on a bi-weekly payroll system, which tells me we are both still right. Private companies can also be on a bi-weekly system. It works the same way, but no one can waive their entitlement for O/T in any work week; except that, an overtime day can be reduced by allowing the employee to work less on any other day within the same work week. One can not reduce O/T accomplished in this work week with less hours worked in the 2nd work week! Pork

Petard · February 2003

It appears that the hospitals have better lobbyists than, say, the pork industry. (Attached down below is the beginning of the code section that Hatchetman cites.) Basically it provides a separate set of rules for hospitals, et al. They are permitted to delay paying the overtime premium until an employee exceeds 80 hours worked during a two-week period, provided, however, that they must pay overtime for hours in excess of eight per day. In other words, they follow a different set of rules than the 40-hours-in-one-week-with-no-daily-overtime rules that everyone else follows (not counting daily OT requirements in some states). The hospitals can "balance" hours in one week against hours in another week. The daily OT would limit the usefulness of these special rules, but it's still better flexibility than the rest of us get.

These special healthcare-industry rules don't have anything to do with pay frequency (bi-weekly, semi-monthly, whatever) other than you obviously couldn't pay weekly on the 8-80 system.

Sandra, I think your intuition is correct, as Linda affirmed. You shouldn't allow nonexempt employees to waive the daily overtime rules.

[Code of Federal Regulations]
[Title 29, Volume 3, Parts 500 to 899]
[Revised as of July 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR778.601]

[Page 434-436]

TITLE 29--LABOR

CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

PART 778--OVERTIME COMPENSATION--Table of Contents

Subpart G--Miscellaneous

Sec. 778.601 Special overtime provisions available for hospital and residential care establishments under section 7(j).

(a) The statutory provision. Section 7(j) of the Act provides, for
hospital and residential care establishment employment, under prescribed
conditions, an exemption from the general requirement of section 7(a)
that overtime compensation be computed on a workweek basis. It permits a
14-day period to be established for the purpose of

[[Page 435]]

computing overtime compensation by an agreement or understanding between
an employer engaged in the operation of a hospital or residential care
establishment, and any of his employees employed in connection
therewith. The exemption provided by section 7(j) applies:

if, pursuant to an agreement or understanding arrived at between the
employer and employee before performance of the work, a work period of
14 consecutive days is accepted in lieu of the workweek of 7 consecutive
days for purposes of overtime computation and if, for his employment in
excess of 8 hours in any workday and in excess of 80 hours in such 14-
day period, the employee receives compensation at a rate not less than
one and one-half times the regular rate at which he is employed. . . .

Terri B · February 2003

The 8 & 80 rule is one of those secrets we HR folks don't find out until we happen on it. I didn't know about it either until I took my current position at a medical center. Learning is a good thing.

Maybe you would like a transfer to healthcare, Pork?

8-80 rule

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