Recent reports have described more than one scenario in
which an employer violated the federal Fair Labor Standards Act because the
employer failed to recognize that non-exempt employees' hours worked over 40
were overtime ones. The employees had performed their work in more than
one position during the week, such that their time spent in any particular
job did not exceed 40 hours. However, an employee's hours worked in all
of the positions in which he or she was engaged for the employer in the
week totaled more than 40.
For example, one set of circumstances involved non-exempt restaurant
employees. Several of them typically worked around 25 hours as kitchen
assistants for part of a week and about 20 hours as waitstaff at other times in
the week. Because no such employee worked more than 40 hours either as a
kitchen assistant or as waitstaff member when the positions were viewed
separately, the employer did not consider any of their (25 hrs. + 20 hrs.) = 45
total hours worked to be FLSA overtime.
The threshold for FLSA overtime wages is not applied job-by-job. Instead,
the FLSA requires that all of an employee's hours worked for the
employer in every job be combined to determine
whether the employee has worked more than 40 hours in a single workweek. If the employee has done so, then he or she
is due the FLSA-required overtime pay for the hours worked over 40.
Therefore, when one of the restaurant employees worked a total of 45 hours in
both jobs in a workweek, he or she should have received the proper overtime
compensation for (45 Total Hrs. - 40 ST Hrs.) = 5 overtime hours.
This state of affairs can arise in any industry or setting. FLSA overtime
requirements are not limited to a by-the-position, by-the-department, or
by-the-location measurement. Every employer should be certain that what
might be a spreading "Everybody Does It" misconception has not taken root in
the employer's own organization.
Read more articles at Fisher & Phillips' Wage and Hours
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