It’s “What’s Up? Wednesday”. Time to answer your question about OVERTIME PAY and COMP TIME . . .

You asked: “An employee (desk job, no sales) was behind on her work and was advised by her boss to bring her desk current.  This particular boss has always stated that she never pays overtime. However, we have two different organizations working under one roof and our other organization does honor overtime if approved.  To confuse the matter, all staff members are employees of the same organization (the one that honors overtime), however a few are considered employees of the other department since that’s where they work.

The boss in question leaves for vacation and the employee whose desk is behind works overtime, including Labor Day.  The two time cards are completed and submitted for approval, one is signed by a Partner of the boss and the other (since it’s in a different pay period) is submitted to the boss after she returns from vacation.

Since the Partner was aware of the issue and signed the approval line, is that overtime to be honored, even though there was a different position already conveyed to the employee? Since the unsigned time card was submitted, is that overtime to be honored or can it be disallowed due to the standard of not paying overtime?  In other words, has a precedent been set?

Also, if the employee is requesting Comp time in lieu of pay, does that change anything? 

The answer:

Phew. Okay. Before we look at anything else, let’s look to the law. The Fair Labor Standards Act (FLSA) clearly states that employers must pay overtime to non-exempt employees who work more than 40 hours in a work week. No exceptions are given for managerial edicts, previously-established company practices, or “proper approvals”. In other words, TIME WORKED IS TIME PAID. Period.

That being said, the key word there is “worked”. If you are certain that she actually worked that time you must pay her for that time, no matter what. And you must pay the federally-mandated time-and-a-half (at least) for any work that took her past 40 hours in one work week. There is no wiggle room here. The feds aggressively enforce compensation laws.

If you would like more information about exempt vs. non-exempt status, click here to refer back to my previous blog that explained the two in more detail.

Regarding comp time (compensatory time) in lieu of pay: assuming you are not a public employer, you can take that off the table completely. The FLSA does not permit private (non-public) employers to offer comp time in lieu of overtime pay. Public employers (State or local government agencies) however, may under limited circumstances offer comp time in lieu of cash overtime pay. But it must be at a rate not less than one and one-half hours for each overtime hour worked.

Stay tuned for next week’s question when we dive into Holiday pay issues . . .

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