Are You Really Paying More Than You Need To?

By John E. Thompson

Employers sometimes pay workers more than the federal Fair Labor Standards Act requires.

Of course, some do so as a matter of choice.

However, in other situations, this happens because management misunderstands what its legal obligations are. Among the potentially expensive misconceptions about the FLSA’s principles are:

“Paid time off must be counted as hours worked”

The FLSA does not compel employers to treat paid time off as work time (provided that the employee is in fact not performing any work, including not being “engaged to wait”).

For instance, assume that Barb works 36 hours on Monday through Thursday of her Monday-through-Sunday work week. She performs no work of any kind on Friday, because it is a holiday. Under ABC Corporation’s holiday policy, she receives pay for that holiday equal to eight hours times her normal hourly rate. She does no other work in the work week.

ABC Corporation is not required to treat Barb’s eight holiday hours as FLSA work time, so under that law she has worked only 36 hours – not (36 + 8) = 44 hours. In other words, even though she is paid for 44 hours (36 hours worked, plus 8 unworked holiday hours), none of those hours has to be paid for at FLSA overtime rates.

“Employees must be allowed to work their full schedules”

Nothing in the FLSA prevents an employer from reducing the hours worked in a work day or work week, or from sending employees home before they have worked their usual schedules. This is lawful under the FLSA, even if it is done in the interests of reducing the amount of work performed so as to avoid paying any overtime wages.

As an illustration, suppose that ABC Corporation’s non-exempt employees have already worked 36 hours each on Monday through Thursday of their Monday-through-Sunday work week. If they work a full eight-hour schedule on Friday for a total of 44 hours worked in the work week, the FLSA overtime pay due for the four overtime hours will be more than the budget can stand.

Management sends each employee home after he or she has worked no more than four additional hours on Friday, and the employees perform no other work in the work week, such that no employee has worked more than 40 hours in the work week. This is perfectly acceptable under the FLSA.

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“Employees must be paid the same rate for each kind of work”

This is not so; the FLSA permits employers to assign different hourly rates (of not less than its minimum wage) to different kinds of work. Naturally, this may not be done in a way that has the purpose or effect of unlawfully evading the FLSA’s overtime requirements. See this for more details.

Consider this example: Each Sunday afternoon, Construction Company’s equipment operators are required to drive themselves and their tools and heavy equipment to the location at which they will perform their work beginning on Monday morning.

Management knows that this Sunday activity counts as compensable work time under the FLSA, but it does not want to pay the operators their same high hourly rates for this work. The FLSA permits Construction Company to pay a lower hourly rate of not less than the minimum wage for the Sunday work.

The bottom line

It is wise to take a fresh look periodically to ensure that compensation practices are not unintentionally pushing wage costs higher than is legally necessary under the FLSA.

Of course, employers must also consider whether other, non-FLSA limitations restrict their alternatives, such as the requirements of another applicable law or of a union contract.

This was originally published on Fisher & Phillips’ Wage and Hour Laws blog.

John Thompson is a partner in the Atlanta office of the law firm Fisher & Phillips. His practice focuses on wage and hour law, assisting employers in preventive efforts designed to ensure compliance, and he handles both investigations conducted by government agencies and litigation in the wage and hour area. John has served as a Special Assistant Attorney General for wage-hour matters for the State of Georgia. Contact him at jthompson@laborlawyers.com.

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