No OT Pay Because of Vacation

[Vycor]

NY State Here

So heres the scenario...

I was on vacation Monday-Thursday. I came back Friday and put in my full time. I'm a salary employee and a manager. So I work extra hours all the time without pay. Im a field technician with computes. So I was asked to go to a client site from 6pm-9pm at night. I asked if this would be OT and i was told yes i'd be getting OverTime. So I did the hours and put in for my OT.

It was actually 2.5 hours of OT when it came down to it.

So i get my check today and i see i got paid my normal rate for 42.5 hours... i should have had 40 regular, and 2.5 OT, not the case.

I was told since i didnt actually WORK a 40 hour work week, and i was on vacation for 4 of those days (this is paid time off btw, vacation time i earned), that i wasnt eligible for OT unless i put in 40 hours of actual work, not including vacation.

Is this legal??? I was told i'd get getting OT which is why i did the work, and now im just given my regular rate of pay for those 2.5 hours. Im an excempt employee but im allowed to earn overtime in certain situations (i have to ask first its its not assumed, but if im told "yes you can earn OT for this" then im given OT. Im aware that a "non-excempt" employee wouldnt be eligible, but im an excempt employee who was told i'd be getting the OT

 

[FlyingRon]

If you are exempt (salaried) they're not even required to pay you straight time, let alone overtime rate for this circumstance.

 

[swalsh411]

"Overtime" for exempt employees often refers to straight-time additional pay.

Have you been paid time and a half in the past?

 

[cbg]

Depending on whether you are exempt or salaried non-exempt, there are two possible answers.

If you are exempt, you were paid more than the law requires. The law NEVER requires that an exempt employee receive even straight time for extra hour, let alone OT hours.

If you are non-exempt, you were paid correctly. Under NO CIRCUMSTANCES WHATSOEVER does the law require that hours paid but not worked (such as vacation) be included in OT calculations.

In fact, regardless of whether you are exempt or non-exempt, they COULD have paid you only for the time actually worked in this situation (that is not always the case for exempts though it is for non-exempts). Even an exempt employee does not have to be paid for full days taken off voluntarily - paid vacation is at the opt of the employer.

 

[OHRoadwarrior]

It is not customary to count non worked hours toward 40 for calculation of overtime. You should have tried to cut your vacation time by 2.5 hours, if possible. If not, you just need to deal with it.

 

[cbg]

Cutting his vacation hours would not have entitled him to OT. Only working more than 40 hours would do that.

Overtime is never, ever, ever, ever, ever due by law on hours paid. ONLY on hours worked.

 

[OHRoadwarrior]

You can have different vacation arrangements. Some require days, some can elect 1/2 days, some hours. If OP can elect hours and revise his vacation claim, he can retain those extra hours as vacation unused.

 

[swalsh411]

But the OP has a valid point if he was specifically told he would be receiving additional pay prior to agreeing to do the work and then did not. I think that is his question. Not whether or not his employer is legally obligated to pay overtime in general.

 

[cbg]

Two questions:

Did the person who told him he would get overtime know that he'd been out most of the week on vacation?

Does the person who told him he would get overtime have the authority to authorize the payment of OT when it is not due?

And how about a third one:

Does anyone REALLY think that what we're talking about constitutes a legally binding contract to pay more than he is owed?

 

[cbg]

You can have different vacation arrangements. Some require days, some can elect 1/2 days, some hours. If OP can elect hours and revise his vacation claim, he can retain those extra hours as vacation unused.

If it's already been paid, that horse is out of the barn, EVEN IF it was an option in the first place.

 

[swalsh411]

You can have different vacation arrangements. Some require days, some can elect 1/2 days, some hours. If OP can elect hours and revise his vacation claim, he can retain those extra hours as vacation unused.

If the employer allows it. Not a legal issue either way.

 

[Vycor]

Thanks for the replies also so let me answer sone questions

1) my employer did know I was on vacation we are a small company and they approved my time off. Over a month ago
2) i was told via email I'd be getting overtime for Friday nights work
3) the person who approved this ot is the owner of the company he has one person below him and then me - small company I'm not far from top
4) I have been given ot before in fact this weekend I'm doing work at our office so I'm being paid ot which was approved and verified

I'm a salaried/excempt employee so yeah ot is not a given but In this case (and like others) I was to,d I'd get it

Employer told me he didn't realize I couldn't claim ot since I was on vacation and that it's not his doing it's the states since i was on vacation

But at the same time he told me I'd get ot - if he made that mistake he should pay for it not me

Its documents in Emails prior to me doing the work last Friday I'd get ot pay

 

[anteater]

Just to clarify...

You did get paid for the hours, right?

So i get my check today and i see i got paid my normal rate for 42.5 hours...

Your complaint is that the 2.5 hours were not paid at time and one-half, right?

i should have had 40 regular, and 2.5 OT, not the case.

Employer told me he didn't realize I couldn't claim ot since I was on vacation and that it's not his doing it's the states since i was on vacation

The employer does not seem to have any idea what he is talking about since he could pay you at 10x your rate if he wished to. On the other hand, as cbg pointed out:

If you are exempt, you were paid more than the law requires. The law NEVER requires that an exempt employee receive even straight time for extra hour, let alone OT hours.

Are you really going to sue your employer for the equivalent of 1.25 hours pay?

 

[The Occultist]

Just because your supervisor or whomever mistakenly told you false information does NOT require him to pay you the OT hours. And please don't take that stance, "If he told me incorrect information then he should pay for it not me" nonsense. You're not paying for it, you're simply not receiving monies that were not actually due to you in the first place. A mistake was made, that is all. No, you have no entitlement to the OT hours.

 

[cbg]

This is something you'll have to take up with your employer. If you were to go to the DOL and tell them that as a salaried exempt employee your employer only paid you straight time for overtime and not time and a half, and at that in a week when you were on vacation four out of five days, they'd laugh in your face.

If you want to hire a lawyer to sue your employer for the equivalent of 1.25 hours worth of pay that he didn't owe you in the first place on the basis that "he said so" (at a time when he most likely was not thinking of the fact that you'd been on vacation" you go right ahead and do it (assuming you can find a lawyer to do it in the first place). Just be aware that EVEN IF YOU WIN, which is not at all a guarantee, you'll pay that lawyer a heck of a lot more money than you will gain. You have NO legal entitlement to the OT whatsoever.