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Publication

February 2008Newsletter

Wage and Hour Q & A

QUESTION:

I have an employee who sometimes works up to ten hours a day, even though he is scheduled for eight hours per day. He is paid on an hourly basis. He does not, however, work over forty hours in a workweek, as he is part-time. He claims that I owe him overtime at "time and one-half" for all hours worked in excess of his regular schedule of eight hours per day. Do I have to pay him overtime for those additional hours per day that he works above his eight hour shift?

ANSWER:

Technically, you have no obligation under the Fair Labor Standards Act ("FLSA" ) to pay an employee "daily" overtime for hours worked in excess of the employee's regularly scheduled hours. The FLSA only requires employers to pay non-exempt employees overtime at time and one-half their regular rate of pay for all hours worked in excess of forty hours per week.

However, be aware that some states require employers to pay overtime if an employee works more than a certain number of hours in a day. Consequently, employers need to be cognizant of their own state's laws. Additionally, if an employer has agreed (either by contract or written policy) to pay overtime for hours worked over a certain amount in a day, then the employer must comply with the requirements of the contract or policy, and pay overtime. Such language is sometimes found in collective bargaining agreements negotiated by employers with unions.

For more information, please contact Mitchell W. Quick, a partner in Michael Best's Labor and Employment Relations Practice Group at 414.225.2755, or by e-mail at mwquick@michaelbest.com.

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