Overtime?

[TinkerBelleLuvr]

What is the name of your state (only U.S. law)? Florida

The club that I work for was sold on October 1.

The old company's payroll week went from Wednesday to Tuesday. For the final paychecks it went as:
9/23/2009 thru 9/29/2009 - paid on 10/2/2009.

Old company paid for the one day, 9/30/2009 - paid on 10/9/2009.

New company's payroll week is from Sunday thru Saturday - paying every other week.

So, for the first week, the payroll covered Thursday, October 1 thru Saturday, October 3. The following week was a full week.

I had an employee who is feeling that she was shorted "overtime". But I do NOT believe so.

She worked Monday thru Wednesday, 9/28 - 9/30, on the old company's payroll.


She worked Thursday thru Saturday, 10/1 - 10/3, on the new company's payroll. She feels that she worked more than 40 hours in the physical week of 9/27/2009 thru 10/3/2009. My contention is that she worked for two separate companies in that week whose "payroll week" are DIFFERENT.

Here is the breakdown on hours:
From 9/23/2009 thru 9/29/2009 - 40 regular hours, 1.81 OT
9/28 - 8:32
9/29 - 7:57

On 9/30/2009 - 8:26

1st partial week
10/1 - 8:26
10/2 - 7:59
10/3 - 3:59
Total 20:24

My question:

Do we owe overtime hours for the week of 9/27/09 thru 10/3/09 since we literally worked for two different companies in the same week?

[pattytx]

OK, I'm going to have to focus and crunch the numbers on this and right now the brain is mushy. I'll try to look at this later tonight.

However, my first reaction is that this is a new owner and a new employer and that the "workweek" definition ended with the old employer. Basically, it would be no different than Lowe's being bought out by Home Dept.

[justalayman]

Originally Posted by TinkerBelleLuvr

Do we owe overtime hours for the week of 9/27/09 thru 10/3/09 since we literally worked for two different companies in the same week?

but did you work for 2 different companies?

What is the business structure of your company? It is possible for a company to be sold yet it actually remains to be the same company.

Did the new owners assume all liabilities and assets of the old company? Were new contracts with any suppliers or customers required to be signed due to the ownership change?

[Zigner]

To put it in a nutshell, did the FEIN change? (Federal Employer Identification Number)

[mlane58]

There is probably successor liability here. As long as there is substantial continuity in operations, work force, location, management, working conditions and methods of production, there is more than likely a case for this. There have been some cases in the 9th and 10 circuits on this already.

[TinkerBelleLuvr]

Two completely different FEIN numbers involved here. Old company was sold in its entirety.

OLD FEIN issued checks payable on 10/2 & 10/9 involving payroll period ending 9/29 & 9/30.

NEW company started on 10/1/2009.

[TinkerBelleLuvr]

Originally Posted by justalayman

but did you work for 2 different companies?

What is the business structure of your company? It is possible for a company to be sold yet it actually remains to be the same company.

Did the new owners assume all liabilities and assets of the old company? Were new contracts with any suppliers or customers required to be signed due to the ownership change?

Old company retained its accounts receivables & all bills owed thru 09/30/09.

[TinkerBelleLuvr]

Originally Posted by mlane58

There is probably successor liability here. As long as there is substantial continuity in operations, work force, location, management, working conditions and methods of production, there is more than likely a case for this. There have been some cases in the 9th and 10 circuits on this already.

If that is the case, which work week would prevail? Would it be the old Wednesday thru Tuesday? Or would it be the Sunday thru Saturday?

[TinkerBelleLuvr]

help!!

The ONE employee caught in this changeover is really making lots of noise. Would/should I call DOL?

[Zigner]

Originally Posted by TinkerBelleLuvr

help!!

The ONE employee caught in this changeover is really making lots of noise. Would/should I call DOL?

This is all about ONE employee. From my perspective, if this is a good employee who you want to retain, you should pay the OT and move on.

If you don't want to keep this employee. You should pay the OT and move on.


This is a BUSINESS decision. You know...the whole cost vs. benefit thing?

[TinkerBelleLuvr]

My boss wants her gone.

I still don't think OT is appropriate based on the time cards.

[Zigner]

Originally Posted by TinkerBelleLuvr

My boss wants her gone.

I still don't think OT is appropriate based on the time cards.

It's not about "appropriate", it's about what makes financial sense.

Ok, let's say you pay her an additional $100 due to the overtime.
How will that compare to the extra time and money you would have to put in to dealing with the government related to a complaint and/or a wrongful termination suit based upon said complaint?

Pay it, then you can move on without fear of being accused of a retaliatory termination.

[justalayman]

I do not believe there is a legal requirement to pay the OT BUT I cannot imagine this is a huge amount of money. You will have to determine if it is worth the extra money to shut them up or are you willing to deal with whatever hassle this could cause you.


If you enjoy the fight, tell them they are/were working for a different company and since it is a different employer, overtime would not apply.

the one problem I see if you pay the OT; the other employees that did not get the OT pay may have a problem and start the same game.

[pattytx]

I don't either. This is a separate employer, for all intents and purposes (or at least for this purpose) and the employers have different workweeks.

I also agree that it is a risk/benefit decision, at least with Ms. Vocal. I'd give her the overtime check along with her final wages as I walked her out the door.

Then, if you want to try to get hold of the federal DOL and ask them your question, you can do that later. If it turns out she was right, you'd be doing the legal thing by recalculating overtime for the transition week.
[url=http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_778/29CFR778.301.htm[/url]
If it turns out she was wrong, she's outta there.

[TinkerBelleLuvr]

I have NO problem with making the correction if I'm wrong. None at all. I went off the time cards and paid exactly off of them.

Old company - part of the final payouts. We also did a bonus check and vacation balance checks.
I paid the 9/23 thru 9/29 on 10/2.
I paid the 9/30 on 10/9.

New company:
I paid the 10/1 thru 10/3 and the 10/4 thru 10/10 on 10/16.

If I do have to pay overtime, I still don't know WHAT time period it would cover. Is it the old Wednesday thru Tuesday, or the new Sunday thru Saturday. I can't figure out what I would use to even figure out if there was overtime.