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Fair Labor Standards Act (FLSA) Frequently Asked Questions
- Can employers require employees to
work overtime?
- How do I calculate overtime in a week with vacation or
holiday hours?
- How do I calculate overtime for an employee with two
different pay rates?
- Do employees have to paid extra for working weekends,
nights, or holidays?
- Do on-call employees have to be paid for the time spent
waiting to work?
- Are employees entitled to be paid for lunch time if they
eat at their desk?
- Can my supervisor reassign my hours to nights and weekends?
- Can an employee volunteer for another department within
the state of Colorado?
- How can an appointing authority control overtime usage
and resulting overtime cost?
- Question: Over the last couple of months, we
have needed nonexempt employees to work extra overtime, sometimes as
much as fifteen hours every week. Recently, several employees complained
about these requirements, and they say we cannot require this much overtime.
Are they right?
Answer: If
you do not have a collective bargaining agreement or other contract
with your employees that limits the number of overtime hours employees
may work, you may require employees to work as much overtime as you
need. The Fair Labor Standards Act (FLSA) and its regulations do not
limit the number of hours that nonexempt employees may work in any workweek
and do not prohibit employers from requiring them to work overtime.
The FLSA only requires that these employees be paid at a premium wage
of one and one-half times their regular rate of pay for all hours worked
over 40 in a single workweek. BACK TO TOP
- Question: If a nonexempt employee works a full
40-hours in the workweek and also takes a day of paid vacation or holiday,
is the employee entitled to overtime pay?
Answer: According to the Fair Labor
Standards Act, nonexempt employees must be paid overtime at time and
one-half their regular rate of pay for all hours actually worked over
40 in a single workweek. Thus, in calculating how many hours a nonexempt
employee actually works in a week, the employer does not have to count
the paid vacation or holiday time towards the 40-hour workweek. For
example, an employee normally works Monday through Friday, eight hours
a day, and receives a paid holiday and does not work on the Monday.
The employee then works Tuesday through Friday, eight hours a day, and
is asked to work four additional hours on Saturday. The employee's pay
for the week would reflect a total of 44 paid hours, however since the
employee actually worked only 36 hours, he would not receive any overtime
pay. BACK TO TOP
- Question: How do you calculate overtime for
a nonexempt employee who works two jobs with different pay rates?
Answer: There are two methods for
determining an employee's overtime rate when he works two jobs at different
pay rates.
- The first way involves calculating the employee's regular rate
of pay by taking the weighted average of the two jobs.
- Alternatively, an employer and employee may agree (before the
work is performed) that the overtime rate will be based on the regular
rate that applies to the type of work performed during the hours
in excess of forty. BACK TO TOP
- Question: Do employees have to be paid extra
for working weekends, nights, or holidays?
Answer: Generally, no. Nonexempt
employees must be paid the overtime rate only for each hour actually
worked in excess of 40 hours during a workweek. Thus, employers are
not required to pay the overtime rate for work performed on a holiday,
weekend, or evening, as long as the employee's total hours worked in
that workweek are less than 40. BACK TO TOP
- Question: Do on-call employees have to be
paid for the time spent waiting to work?
Answer:The FLSA requires waiting
time to be paid only if the employees must remain on or so close to
the employer's premises, or are otherwise restricted, that they cannot
use the time effectively for their own purposes. For example, if the
employees only have to leave word about where they may be reached, they
generally are not considered to be working while on-call since the time
can be used for their own purposes. BACK TO TOP
In determining whether an employee must be paid for time spent on-call,
courts look at how much control the employer has over the employee and
whether the employee can effectively use the on-call time for personal
purposes.
The Ninth Circuit Court of Appeals, in Owens v. Local 169, 971 F.2d
347, amended by 30 WH Cases 1728 (9th Cir. 1992), provided an instructive
list of seven factors that courts have looked at in deciding whether
an employee has use of on-call time for personal purposes:
- whether there was an on-premises living requirement;
- whether there were excessive geographic restrictions on the employee's
movements;
- whether the frequency of calls was unduly restrictive;
- whether a fixed time limit for response was unduly restrictive;
- whether the on-call employee could easily trade on-call responsibilities;
- whether use of a pager could ease restrictions; and
- whether the employee had actually engaged in personal activities
during on-call time.
- Question: Are employees entitled to be paid
for lunch time if they eat at their desks?
Answer: If employees choose to
eat at their desks and are completely relieved from duty, then the lunch
time would not be considered as work time. However, if an employee is
required to eat at the desk, the time would be considered work time.
If a non-exempt employee voluntarily eats at his/her desk, and answers
phones or performs other work, they are "working." Even though it is
voluntary, they must be paid for the work. BACK TO TOP
- Question: My supervisor called me in today
and said he was reassigning me to work nights and weekends. I've worked
there for 13 years and I don't think this is fair.
Answer: Your supervisor has the
right to ask you to work any day for any number of hours but must pay
you time-and-a-half for any hours over 40 you work in a week unless
you are paid on a salary basis and are exempt from overtime. BACK TO TOP
- Question: If an employee works 40 hours during
the week, and then volunteers to help paint a state building on the
weekend, would the employee be paid overtime?
Answer: If the employee truly "volunteered"
to work on the weekend without contemplation of pay and if the employee's
regular job assignment is not painting, then the time would not be compensable.
An employee can not work for the same employer (the state of Colorado)
as a non-paid volunteer doing the same type of work for which the employee
is paid. BACK TO TOP
- Question: How can an appointing authority
control overtime usage and resulting overtime cost?
Answer: The appointing authority
or designee shall be responsible for approving overtime work. Supervisors
may control overtime by doing the following:
- Send a written announcement to all non-exempt employees that
overtime work is not permitted unless authorized in advance.
- Develop a policy to ensure that employees are not interrupted
during their lunch breaks (30 minutes or more). The best way to
accomplish this is to have employees leave their work stations during
their breaks.
- Develop a policy to ensure that employees are not allowed to
start work before their regular starting time or to continue work
after ending time.
- Develop a correction action policy for employees who violate
the rules. An employee may not voluntarily work overtime or waive
the right to overtime compensation. (Note: Employees sometimes choose
to ignore overtime policies and continue working extra hours before
and/or after regular work time. Corrective actions may be issued
to these employees according to established policies. However,
the department is still liable for the overtime payment, if the
unauthorized overtime work is acknowledged, witnessed and/or proven.) BACK TO TOP
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