Overtime Pay, am I entitled?

[tcordero]

New York
I have a part time assistant. As of March 2003, she became a permanant part-time assistant. (being she's entitled to 60% of benefits here). She looked at her paystub, and noticed that she did not receive time and a half pay on her check. She worked 49 hours that week, and received straight pay. She was informed by payroll that she's not entitled to time and a half pay for those 9 hours because she's part time. Is this true? I don't believe it is. Or does it depend on the company? Please advise, thanks for your help.

 

[Beth3]

It certainly is not true. With the exception of a few select occupations that don't apply here, non-exempt (hourly) employees MUST be paid time and a-half for all hours worked in excess of 40 in each 7-day payroll period. Whether an employee has part-time, full-time, temporary, on call or any other status is completely irrelevant.

If your assistant worked 49 hours one week, then those nine hours absolutely must be paid at time and a-half. Go back to payroll, tell them to fix this immediately, and also tell them to educate themselves on the requirements of the Fair Labor Standards Act. Their ignorance has the potential to lay your company open for a major wage and hour violation.

 

[tcordero]

Thanks for your help, much appreciated. If they realize their mistake and pay her the money owed, is she going to wind up owing tax since its been so long? Or is the company responsible for that? Thanks again.

 

[JETX]

"If they realize their mistake and pay her the money owed, is she going to wind up owing tax since its been so long? Or is the company responsible for that?"
*** The employee is liable for any taxes incurred due to the wages earned.

 

[Beth3]

ALL wages and other forms of compensation provided by an employer to an employee are taxable income (except that portion that may be directed into a tax exempt or tax deferred benefit plan.) The fact that the wages are being paid late does not absolve the employee of her responsibility to send Uncle Same his portion mandated by law.

The money is taxable income based on the year it's received. So if the company didn't pay her her OT pay from 2003 until 2005, it's taxable income for 2005.

 

[tcordero]

I looked up the following Fair Standards Labor Law, and according to what I read, it seems to me that she isn't entitled to the OT pay. She is an administrative assistant, and look what it says below......is it correct? Thanks.

The following are examples of employees exempt from both the minimum wage and overtime pay requirements:

Executive, administrative and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals (as defined in Department of Labor regulations);

 

[Beth3]

Just because an employee has an administrative job does not mean they meet the criteria for the Administrative exemption in the FLSA, which in brief is:

"Their primary duty is office or non-manual work which relates to their employer's management policies or general business operations.

They regularly exercise discretion and judgment in their work.
They either assist a proprietor or executive, perform specialized or technical work, or undertake special assignments.

They don't devote more than 20% of their time to non- administrative functions (40% in retail and service establishments)."

I doubt that your administrative assistant meets these criteria. The vast majority do not unless they are an executive assistant performing specialized and independent project work in support of a senior company executive. You actually have to read the whole law if you want to understand it, not just a sentence or two.

 

[WISHIN]

Beth3

Is there any word yet on pending legislation to change the overtime parameters in US labor laws? If you think employers take advantage of employees by skirting labor laws now, imagine what it will be like if the proposed changes are implemented.

 

[Beth3]

Now just hold it a second. Among the changes in that revision is the ability to flex time across payroll periods if the employee AND employer BOTH agree. I've had employees asking me for years if they couldn't PLEASE take off time in one week and "make it up" in the next at straight-time, as that would allow them a lot more flexibilty to be able to take care of family and personal matters when necessary. As much as I've wanted to allow it, I've had to say no because the current law would obligate the employer to pay the extra hours in week two at time and a-half.

There has been a tremendous amount of misinformation put out by unions and union lobbyists about this legislation. Most of the proposed changes are what many employees have been asking for, not employers.

As far as I know, the legislation has "died on the vine" in Congress. I don't know when and if it will be reintroduced.

 

[WISHIN]

Now, you just hold it a minute!

You provide an interesting contrast to my experience in the workplace for the past 45 years. Admittedly, that's only been with 3 employers. One a very large corporation, the other two smaller companies. Yet, at all these companies I have personal knowledge of non-exempt employees having been asked by management to work late with the promise of comp time in lieu of overtime pay. This includes my current employer. And, before you ask, most of my positions have been in middle and upper management outside of the human resources arena.

I'd like to hear from others on this board regarding this issue, because I can't believe I'm in the minority here.

 

[Beth3]

But what does the new legislation have to do with that? I certainly do not agree with these former employers of yours violating the law. Unless these were public sector employers, comp time is expressly prohibited, unless it's within the same week (in which case it's not actually "comp time" - it's just a work schedule adjustment.)

I don't have strong feelings one way or the other about the legislation that's pending. It doesn't affect me personally in any way. It would however make it a lot easier for employers to provide the kind of flexibilty that many employees have been asking for for a very long time.

 

[JETX]

Here is one 'voice' from a senior member. I agree completely with Beth. And you are in the minority.

And while we are here, lets look at the apparent contradictions in your post:
1) Your subject line says, "am I entitled", clearly showing that this is YOU not some other person as you claim.
2) In your first post, you said that this 'other person' was a "permanant part-time assistant".
3) Later, when it was pointed out that this 'assistant' wasn't eligible for overtime, this person 'magically' became an "administrative assistant", apparently claiming this put her in a special classification and subject again to overtime compensation.

Bottom line..... this person is NOT eligible for overtime with the duties and responsibilities that you have indicated. Of course, if you disagree with this OPINION, then your only real recourse is to file a complaint with your state labor agency.

 

[HomeGuru]

Who's on first?

 

[Beth3]

I don't know.

 

[WISHIN]

But what does the new legislation have to do with that?

Beth3

I read in a business paper that the legislation in question would eliminate/change the requirement for time and a half after 40 hours, hence my comment.

JETX

Being a senior member does not automatically lend credence to all of your posts, so it's not necessary to state that each time you disagree with someone. Make your opinions stand on their own and be certain you are responding to the proper party.

Have a nice day