Posted by Tamara
Tim is an employee in an Missouri commercial bakery. His employer pays him every two weeks. During the first week of the payroll period, Tim worked for 50 hours. To avoid paying overtime, his employer wanted to have him work just 25 hours the following week and take 15 hours of “comp time” off. That way, his hours could be averaged out at 40 per week. Is this legal?
The answer is, “No.”
Hourly employees must, by federal law, receive overtime pay rates when they work more than 40 hours in a payroll week. It is illegal for the employer to give a worker time off during a different payroll week rather than pay overtime. The employer may not average a worker’s hours over two payroll weeks, either, even if they fall in the same payroll period.
The Fair Labor Standards Act, or FLSA, requires that when an employee puts in 50 hours in a payroll week, she or he must get 40 hours at the regular rate and 10 hours at the overtime rate. Overtime is calculated to be 1.5 times the worker’s average pay rate for the given payroll week.
There is an exception, however. An employee may take time off during the same payroll week to eliminate or cut back on overtime. An hourly employee who worked 13 hours on Monday (five extra hours) could legally be asked or required to take off five hours early on Tuesday. This is not only legal but a common practice for controlling overtime. Time off during the same payroll week is not “comp time.” Because the employee has not worked more than 40 hours, he or she is not entitled to overtime.
“Comp time” is simply paid time off in replacement for paid overtime, Government agencies and non-profit organizations may use the practice, but it is illegal for private employers to do so.
So, in response to an Missouri employee who wrote that his employer agreed to give him two weeks of unpaid vacation to take a long-planned trip, and asked if he could work extra hours in the weeks before and after in order to make up the lost wages, the answer would be “No.” This is an illegal move.
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