non-exempt employees

MS HR · October 2003

Can a nonexempt employee work 39 hours one week and 41 hours the next and get paid for 80 hours without using one hour vacation?
Is there anything to prohibit a nonexempt employee from working 85 hours one payperiod and using the 5 hours the next payperiod to balance the time out without using leave time? I would appreciate any information my colleagues can give me.

Peyton Irby MS · October 2003

the bottom line is that the wage & hour division of the usdol says any time over 40 hours in a seven day workweek is to be paid at overtime rates unless you are a health care employer and can use 80 hours in a two week period.
Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]

Don D · October 2003

There is no Mississippi Wage-Hour law. Therefore, the federal law prevails, which states that you cannot average the two weeks. Each week, in your case, is a stand-alone week for purposes of wages. If the ee wants 40 hours pay for the 39 hour week, seems he would have to take an hour of leave. You must pay him one hour of overtime in the 41 hour week. I am assuming you are not in health care.

Pork · October 2003

And we must also assume that the work week is an announced published work week from say a Sunday to a Saturday. 38 hours worked in this week is paid at 38 hours plus 2 vacation hours if the ee wants to get a full 40 hour work week paycheck. 41 hours within this published work week requires the company to pay 40 hours at regular rate of pay and 1 hour of O/T. If your work week is a two week long work period then one could work 41 hours in one week and 39 hours in the 2nd week and the pay would be based on 80 hours accumaltive with out a vacation hour. I believe the words in the regulations "within the same work week, all hours are to be counted within that week". If your copanies' pay period is a two week span then the words are applied toward an 80 hour work period!

GLAD TO SEE YOU BACK "DANDY DON", I have been off the net for several days with a down computer system, back up now.

PORK

Shadowfax · October 2003

Pork - I'm not sure you meant that an emp/er could use an 80 hour work (2 week pay period) and not pay for 1 o/t for 41 hours either first or second week. I don't think just any emp/er can adopt the 80 w/o special conditions - Belo Plan, 1040/2080, some police and fire etc. Part of original post looked like a form of comp time, whichof course, is only available in the public sector. I think anything over 40 in a 7 day period is time and a half. Have I misread or am I outdated?

Don D · October 2003

[font size="1" color="#FF0000"]LAST EDITED ON 10-28-03 AT 10:20AM (CST)[/font][p]Pork: I also question what I think you are saying about the 80 hour workweek. Simply because an employer 'publishes' an 80 hour pay period does not by any means override the requirement that each workweek is stand-alone. Even in your case, with your published pay period of 80 hours, spanning two weeks, if one of your pig-pullers works 41 hours in one seven day period of time, you owe her/him one hour of overtime. If you are not doing that, you're going to have the wage-hour people in there along with the veterans administration and immigration people who are already camped there.

Pay periods are typically one week, two weeks or a month. A workweek, by federal definition, is a seven-day period of time and cannot by definition be an 80-hour two week time period during which you average the hours worked, unless (as I understand it) in healthcare or law enforcement or fire protection.

non-exempt employees

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