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Free Human Resource Information
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Overtime
Myths Just Don't Fade Over Time |
by Geoffrey Glaser
There are four common myths regarding overtime. Following
is an attempt to separate myth from fact.
Myth 1: All salaried workers are exempt from overtime.
Fact: The method of payment (hourly or salaried, or title for
that matter) does not determine whether someone is entitled to overtime pay.
Although all hourly workers are eligible for overtime, not all salaried
workers are exempt from the overtime requirements under the Wage and Hour
Laws.
There are three categories of employees who are exempt from
the law.
The first category, “executive” employees are salaried
employees whose primary duty is the management of a department or enterprise.
"Executives" must regularly manage two or more employees.
If such an employee does actual production work for more than 50 percent of
the time, then he or she does not qualify for the "executive" exemption, even
if the title of the job is managerial in nature ie; Manager
The second exempt category is “administrative” employees.
Administrative employees perform office or non-manual work relating to
management policies or general business operations. The same 50 percent of
production work restriction applies.
The third category is “professional” employees.
Professionals perform work which requires specialized study or the exercise of
creativity.
Myth 2: Unless the supervisor specifically authorizes overtime
work, the employee is not entitled to overtime pay.
Fact: All work time that exceeds 40 hours in one week counts,
even when the employee is working extra on his or her own initiative. For
example, if the supervisor is aware, or should be aware, of an employee
working more than 40 hours, then the law says that the employer "suffers or
permits" the overtime, and therefore time and a half must be paid.
Note: Overtime pay for more than eight hours worked in one
day is not required by law.
Similarly, if a supervisor tells people to get a certain
amount of work done but " overtime is not authorized" the extra work still
counts towards overtime if the supervisor permits it. The remedy for
unauthorized overtime is discipline - not refusing to pay.
Myth 3:
Work done "off the clock" does not count toward
overtime.
Fact: All time actually worked counts toward overtime, even if
the work is performed before or after the regular shift. It is the employer's
responsibility to prevent these violations. Examples of such work include:
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Preparations for work, such as setting up machinery or just coming in early.
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Changing clothes or wash ups, if required or necessary.
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Time volunteered outside the shift, such as working late or through lunch.
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Caring for equipment such as computers or tools.
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Time spent on required training.
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Working at home.
Myth 4:
Employees can give up their overtime pay rights.
Fact: The right to overtime pay cannot be legally waived so any
agreement to that effect is not valid.
Understanding the facts about overtime is essential for two
reasons
- To
ensure that employees get the pay they are entitled to.
- To
protect the employer from future lawsuits that could be even more costly.
The potential liability for not complying is two years back pay, fines,
attorney fees and damages.
Geoffrey Glaser is an HR attorney and
generalist with 25 years of experience and is a Human Resource Store
associate. You can access him through our legal hotline, which is included
in our package of Outsourced Human Resource Services, or by calling us at
708-645-2530 24 hours daily.
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