Man, oh, man…although I’ve been working with school districts and the Fair Labor Standards Act (FLSA) for some time now, and I still see some really wild misconceptions. Here are some actual comments I’ve received along with my FLSA “Reality Check” responses.
- If a District has a policy against working overtime and an hourly employee works overtime hours without receiving permission from his/her supervisor, the District is not required to pay compensation for the overtime.
Reality Check. No. You have to pay overtime (or provide compensatory time, if your District uses compensatory time) at one and one half (1½) times the regular hourly wage for all hours worked over forty (40) hours in a work week. You can and should discipline the employee for violating policy by working without permission, but you must pay or provide compensatory (“comp”) time for the overtime worked.
- If neither the employee or the employer has “proof” of the overtime hours worked, then the overtime pay isn’t required.
Reality Check. No, not really. “Proof” can be something as simple as the person claiming he/she has worked the time. Generally this testimony is supported by that of people who have seen the person working. For instance, Mary brings lunch and takes the lunch to her desk each day. She continues to answer the phone and work on her computer during her lunch hour, saying she has “too much to do” to finish her work by the end of the day. She hasn’t been given permission to work through lunch, but her supervisor has seen her eating lunch and working at her desk during her lunch hour. Other employees and members of the public have also seen her working through lunch. She later claims that she has done this 3 out of 5 days for the past year. Not only can you not disprove her testimony, but you have to admit that she has done what she claims, at least part of the time. The burden of proof is only by a preponderance of the evidence.
- The District can insist that employees change their time cards to remove unauthorized overtime or not report unauthorized overtime.
Reality Check. The District can insist anything it likes, but that doesn’t make it legal and it doesn’t prevent the District from being required to pay the overtime. In fact, such insistence will demonstrate to the Wage and Hour Division that the District knew exactly what it was doing and was acting in bad faith. Finally, falsifying a public record is actually a criminal act in this state (e.g.: A.R.S. §13-2407, Tampering with a Public Record, a class 6 felony).
- “Comp time” must be used in the same week it is earned.
Reality Check. No, comp time can be accrued up to 240 hours for regular government hourly employees and up to 480 hours for police, fire, and hospital employees. Employers should keep track of the hours and ensure that they are used in a timely manner, but there is no requirement that they be used in the same week in which they are earned. If an employee wants to use comp time at a time that is inconvenient for the governmental entity, it can deny the request, but it should provide alternative dates, times that work better for the entity. If the governmental entity cannot find a convenient time for the employee to use the comp time or if an employee continues to work overtime after the maximum comp time has been accrued, then the entity must pay out the comp time to the employee at the employee’s hourly wage at the time the overtime was earned. The federal Office of Personnel Management requires all employees, exempt and non-exempt, who are allowed to have and accrue comp time to use it before the end of the 26th pay period after it accrued…essentially a year later.
- If we pay the non-exempt employees a weekly salary that works out to their hourly wage or more, we don’t have to pay comp time or overtime because they waive it.
Reality Check. No, nonexempt employees don’t waive–and can’t waive–their right to overtime for the hours worked over 40 hours in one work week. In fact, if the nonexempt person works over 40 hours in the work week, the “salary” will be divided by 40 hours to come up with the hourly wage, and the overtime must be paid, or comp time given, at 1½ times that hourly rate.
As always, be sure to check with your legal counsel before proceeding.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Candyce B. Pardee at 928.373.3409, log on to udallshumway.com, or contact an attorney in your area.