Shirley Kaufman Article


Overtime Rights for Hourly Employees

Background:  Almost every workplace and almost every employee in the United States is covered by a U.S. law named the Fair Labor Standards Act, the FLSA for short.  The FLSA, in partnership with laws passed in each state, sets a minimum hourly rate.  In Arizona, that rate is currently $8.05 per hour. 

The FLSA also outlines which employees, according to their job duties and compensation, must be paid overtime for working long hours.  [Whether a job position is eligible for overtime or exempt from overtime is addressed in a separate article, “Exempt Versus Non-Exempt (From Overtime Requirements):  Changes Are Coming Soon”.]

The Rule:   If you are in a job eligible for overtime, you are entitled to be paid time and a half your regular hourly rate for every hour you work over 40 in a workweek. 
Neither the FLSA nor Arizona law requires overtime for hours worked over some limit in a single day or for work performed on weekends or holidays if an employee has not worked 40 in the workweek.  The single test in Arizona for when overtime is required is “over 40 hours in a workweek.”

While that single rule in Arizona may sound easy to follow, there are plenty of mistakes to be made that could result in you being underpaid.  Be sure you are getting credit for and paid for EVERY hour, or partial hour, you work.  Be aware of the following examples of times employees work and should be paid but frequently are denied pay: 

•    If you perform any work related duties at all, even if it’s outside your scheduled hours, you are working and must be paid.  For example, if you check and reply to emails on your days off, you are working and must be paid for the time.  It does not matter that you were not instructed to check emails or perform other work.  That you did so requires you to be paid.

•    Waiting time typically counts as work time that must be paid if you are unable to use the waiting time for your own purposes or if your employer controls the waiting time.  In other words, if you are not completely relieved from duty, you are working and must be paid.

•    On-call time is work for which you typically must be paid if you have to stay on your company’s premises or so close that you don’t have the freedom to do whatever you want.

•    If you have an unpaid meal period in your schedule, you must nonetheless be paid for the meal period if you perform any work at all (including reading work-related emails).

•    Rest periods of less than 20 minutes are counted as time worked and must be paid.

•    Time you spend in meetings, lectures or training is considered work time and must be paid unless it’s outside your regular hours AND your employer isn’t requiring you to attend AND it’s not related to your job AND you don’t do any work during your attendance.

•    Travel time from your home to your usual work site is not work time, but travel to job sites within your community is work time.  To illustrate, if you are a painter and have to report to your company’s warehouse every day to get your assignment and pick up paint, and then you drive to the building you will be painting, the drive from your home to the warehouse is not work time but the drive from the warehouse to the building you are to paint is work time.

The “Salary” Confusion:  Another confusion is that some employees who by law must be paid overtime for working extended hours are hired on a salary basis and as a result are told and believe they are not eligible for overtime.   But the laws aren’t that easy to skirt – an employee who under the law is eligible for overtime must be paid overtime and paying him or her on a salary basis doesn’t change the law.  What paying on a salary basis does do is confuse management, employees and the payroll staff who have to do the math to convert the salary to an hourly rate, which isn’t as easy as it may sound.  For example, if an employee is paid a “salary” of $600 per week, one possibility is that the hourly rate is $15 ($600 divided by a regular 40 hour workweek); but if that employee has been required to work all hours of the night and day, say 60 hours a week, the hourly rate could be $10 ($600 divided by 60 hours).   Which of these hourly rates is correct depends on all sorts of factors, and won’t be decided in this article.  The bottom line though is that there’s no magical (or legal) way to deprive an employee of overtime when the law says he/she must be paid overtime.

Record Keeping Requirements:  And just how is payroll going to pay the correct amount with all these overtime rules?  Well, the law addresses that too.  The law requires employers to create and retain accurate weekly timesheets for all employees, which most often means each employee must keep track of hours worked each workweek and submit the record for management’s review and payroll’s processing.  If you are an hourly employee who is not, in old fashioned terms, “punching in and out” at the start of the day and also during work starts and stops throughout the day (for a non-working meal break, or a doctor’s appointment, for examples), then you are likely not getting paid accurately. 

More Information:  The FLSA requires employers to post information outlining wage and overtime rights in a place available to workers – usually on a bulletin board in a break room.  Take the time to read it.  You deserve to be paid at the correct rate for every hour you work, and there is no one better than you to know how many hours, or portions thereof, you work in any given week.

Who To Turn To For Help:  If you have questions about your rights to receive overtime, you may want to talk with an attorney knowledgeable about wage and hour laws.  Another option available to you if you have questions about the wage and hour laws and your rights under those laws is to call the Wage and Hour Division of the Department of Labor.  The telephone number for the DOL office in Arizona is 1-602-514-7100, or call the agency’s toll-free help line at 1-866-487-9243.

Contributing Attorney Writer: Shirley Kaufman is an attorney at Faulkner Law Offices, PLLC where she focuses on employment law.

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