Overtime

How many of us currently work (or have worked) where the company policy on overtime is: No overtime will be paid unless management approves the request for overtime hours and pay.

Another question: How many of us currently work (or have worked) where you end up working more than the "standard per the handbook" 35 hours per week (40 hours less 5 hours for lunch breaks)? (Okay, people, stop laughing... we know that most of us don't work 35 hour weeks unless we took a day off without pay. Just go with me here on this, okay?)

Okay, one more question: Did you know that your employer is required by law to pay for any overtime worked regardless of what the company policy says?

Yep, folks, you read that right. So, if you have one of those bosses who runs out at 5:15pm, saying "See ya later" as they go home, while you are checking out the take-out menus, for yet another dinner at your desk *grr*, they may be in some trouble.

According to the law, your boss isn't as safe as he/she may think. He/she may think that, because the policy states overtime isn't paid out if it wasn't approved in advance. Not so. If it's a reasonably known fact that you and your dinner companions/coworkers are working late every night, then the law is on YOUR side. And it can be very harsh to your employer.

Oh, and those smaller, growing firms who think that their employees can give up their "overtime rights"? Just because the firm is small and everyone gets along like one big happy family doesn't mean that you, the employee, are able to give up your legal rights to overtime compensation. (BTW... I come from a big family and most of the time we're at each other's throats. So where did this expression really come from? hmm...)

"Some smaller firms may be financially strapped or have limited resources, so employees might volunteer to work late," says Joseph M. Sellers, a partner and director of the civil rights practice group at the Washington D.C.-based law firm of Cohen, Milstein, Hausfeld & Toll. "The owner thinks to do so is a reflection of their loyalty by giving up the rights to overtime. It can't be done. The whole reason the law is set up is the government recognizes that employers have enormous leverage with employees. Employees may feel pressured to give up the overtime. The employer may have the best or worst of intentions when they ask an employee to help out, but it doesn't matter."

But what about the companies who offer comp time in exchange for your overtime? You, the employee, can opt for comp time instead of overtime pay, but the law is pretty strict about it, as well.

According to the law, any comp time must be used during the SAME pay period as when the overtime was worked. The law states that it must be handled exactly the same way that overtime pay would be - that is, paid out during the same pay period the overtime was incurred.
For example, all the public accounting administrative assistants who work all those insane extra hours during tax season and are planning on taking comp time in May and June. Guess what? Doesn't work that way. It's in direct violation of the law.

So know you are all probably asking yourself, "Well, Mary.. who's eligible for coverage under this law?" I know I would be storming into my HR office if I wasn't self-employed. Basically, any employee who has supervisory responsibilities or such a high level of independence in their job duties probably isn't covered. But, then again, it's up to the employer to prove that the employee isn't covered.

Many employers think that, if they classify an employee as a "manager", they are safe from the overtime rules and regulations. But, turns out, it's the nature of the job - not the title - that determines eligibility. For example, if employee "A" is a supervisor but has no one directly reporting to them, employee "A" is most likely entitled to overtime even though the employer thinks the position is "management."

Law enforcement is usually targeted directly at larger employers (i.e. more $$ to earn in fines from those not in compliance); however, anyone can file a complaint if they feel that they were improperly denied overtime pay. If a complaint is filed at any size employer, state and federal officials may chose to audit the firm's employment records. If the employer is found "at fault", they usually have to make up the unpaid overtime plus interest. If the officials find proof that the employer knew what was going on and still not paying, then they may have to pay double the amount. Plus the Dept. of Labor may add penalties to all this.

If, while investigating, the Dept. of Labor has any question about the unpaid overtime situation, they take the "worst case" scenario - the maximum unpaid overtime - and require the company to pay up.

Nowdays, it just makes sense for any and all firms (no matter industry or size) to usew time clocks. With the technology that's in place at so many firms, where they are able to track who entered which door at what time, it's not too much further "to go". Accurate time/attendance records can help employers minimize the risk and *ideally* reduce risk and fines.

"In the long run, employers want to be cautious," says Sellers. "They should either be training their human resources people to learn the basics of wage and hour laws or get legal advice. It's an area that requires legal compliance. It's not less or more important than the attention given to ensuring payroll taxes are paid, it's just another aspect of managing a work force. If you neglect it, it will become trouble."

So, if you are an employee and not sure if you "qualify" for overtime pay, contact your Human Resources Dept. or an Employment lawyer (if you are in Cleveland, I can make a couple of recommendations) for your own protection.

- Comments please.

Mary Stewart McGovern
President
Stewart McGovern Enterprises
http://www.stewartmcgovern.com/

*****Check out Mary's new ebook, I've Graduated from College. Now What? Or, How to Go About Starting Your Career and Not Finding Just Another JOB. Now available for purchase on our website, http://www.stewartmcgovern.com/!