Overtime pay law question

Not seeking advice of what to do about this, just clarification on the law if possible.

My sister has been working 80+ hours/week without an overtime bump. Her boss tells her she can stop at 40 hours if she wants to, but if she chooses to work more hours the pay will be the same. Does getting my sister to agree to this get the boss off the hook for that pay?

That’s going to depend on the state. In Wisconsin, the law states that you get paid time and a half after 40 hours. That applies to ‘most’ people anyway. There’s plenty of exceptions. If her employer is, for example, trying to make her an ‘administrator’ or redefine her role within the company, it could be a way to avoid it. But if she’s just a ‘regular’ worker in a job that’s not one of the exceptions in her state, she’s likely owed 1.5x/hr after 40 hours.
And, I imagine it’s the case in most states that the DWD takes these types of violations pretty seriously.
Here’s Wisconsin’s laws about it.

Depends on the kind of employee she is. Generally, salaried employees can work many hours more than 40 and are not paid OT. Most hourly employees are paid overtime, it depends on the laws of your state. I was offered a management position at Boeing but turned down the offer. It was a salaried position that paid no OT, the only compensation for working OT was a paid day off for every 16 hours of weekend overtime. There was no compensation of any type for week day overtime. It appears your sister is a salaried employee.

In CA, no. You cannot legally waive your right to overtime. However that assumes you have a right to overtime which can get complicated - there are a boatload of exceptions/exemptions. But assuming you are entitled to OT in the first place, I don’t see that dodge working.

But that’s in CA. Might work differently elsewhere.

To clarify: Illinois, and hourly pay with zero benefits. And her boss just bought a Mazerati.

From Illinois Overtime Laws - FindLaw

Overtime Calculation Methods: * Hourly : pay time and a half over 40 hours work/week.

  • Hourly Plus Bonus and/or Commission : regular rate = (total hours times hourly rate) plus the workweek equivalent of the bonus and/or commission, divided by the total hours in the workweek; then pay half of that regular rate for each overtime hour.

  • Salary: regular rate = salary divided by the number of hours the salary is intended to compensate.

    • If the regular hours are less than 40: add regular rate for each hour up to 40, then pay time and a half for hours over 40.
    • If the regular hours = 40: pay time and a half for hours over 40.
      Illinois Overtime Rules * Highly paid workers (+$100,000) can be entitled to overtime
  • No mandatory overtime for working more than 8 hours a day

  • 3-year statute of limitation for collecting unpaid overtime.

  • Any employer with one or more employee is covered by state overtime law

I believe federally OT starts after 40 hours in ne week for non exempt employees. Some states it is after 8 hours in one day. Have your sister keep track off all the time she is working. And when she is ready to leave go to the labor comissioner and file for all un paid over time. They can go back 5 years.

Aside from the legal requirements for her to be paid, why is she still working 80 hours?

I’d add that, by ‘keep track of’ that should be done by way of, for example, keeping all her paystubs or something, from her employer, that details how many hours she works per week. Having that, in writing, will make sure it isn’t a he said/she said thing. She’ll have proof, from the employer, of how many hours she worked and that OT was not being paid.
As a somewhat unrelated example. A former employee of mine filed for unemployment WHILE HE WAS STILL WORKING FOR ME claiming that his hours had been ‘cut in half’. It took me about 5 minutes to put together a report of how many hours he’d worked every week since about a year pre-pandemic up to the current week and prove not only that his hours hadn’t been cut, at all, but that he’d been leaving early every.single.day for years.* Yes, that’s different than OP’s sisters case, but the point is, the case was super duper easy to defend with with proof in hand just as her case will be easier to make with proof in hand.

That’s the other important thing. If it were me, I’d even make sure the next job is lined up, especially if it’s in the same industry. She should count on losing her job over this. I know, I know, retaliation against employees for this kinda of thing is illegal, but it’s going to happen. Sure, she won’t get fired for reporting her employer to the DWD, she’ll get fired for something else, really soon, and as long as it was for something listed in her employee manual she’ll have to prove it was retaliation by proving that she shouldn’t have been fired for something the handbook explicitly said she’d be fired for doing (ie prove the rules/punishments are being applied unequally/unfairly/inconsistently etc).

Also, if she has even the smallest intention of doing this at some point in the future, she should brush up on her states OT laws.

She should brush up on Illinois OT laws so that if she moves forward with this, she has the right evidence ready to go.
In Illinois, for example, an ‘administrator’ is exempt from OT laws, but you can’t just have the title ‘administrator’, you actually have to being doing ‘administrator’ type things. However, an offer of a tiny raise and the title ‘administrator’ is a tactic sometimes used by bosses to skirt the OT laws. It doesn’t work, but sometimes employees don’t know that.

Secondly, this is about how much compensation she is, or should be, receiving. How much the owner makes or takes home is 100% irrelevant to the case. I understand that making less than you want to make (legally or otherwise) is even more frustrating when you see how much the owner is making, but it absolutely will not help her case in any way, shape or form. Just like how IMO, my former employee needing to borrow money every week likely fueled him to seek unemployment, it’s just that, an opinion, so I left it out of the the (multiple) UI cases he filed against me.
Plus, unless you’ve been to the bank with him, you don’t know what he’s got going on behind the scenes. Maybe that Mazeratti is going to be what pushes him into bankruptcy or maybe he has a 150 million dollars in the bank. But IMO, the only person that type of thing should be mentioned to is a lawyer so they can decide if it’s worth taking into consideration. If she’s just reporting this to the state, the only thing they want is facts directly related to the case.

My first thought as well was ‘well, cut back to 40 hours’. But even without OT, working twice as much gets you twice the money. Maybe she wants or needs the extra money.

*As it turns out, the week he made the original claim for he actually did work less than usual, because it was Christmas week and we were closed.

Here’s the page she needs to become familiar with.
There is a bullet point that says " Minimum Wage/Overtime Claim NEW ONLINE System (Effective October 10, 2018)"
But when I clicked on it it took me to a login page so I couldn’t get much further, though I suspect it’s where one would report OT violations if one wanted to do it online.
It may be worth attempting to set up an account with fake info the first time, just to see if your SSN or employer name are required. Personally, I’d want to nose around in the system before having to worry about a notice being sent to my employer, even anonymously. It would be good to know what they’re going to want/require in terms of proof before putting you job in jeopardy.

Her emotional history leaves her immobilized in the face of change.

IANAL. In light of the laws requiring pay for overtime, I am guessing that somewhere in the law must be a provision that this applies only to authorized overtime, that is, the employer directs the employee to work those hours. If her employer does not want to pay her to work over 40, then he may need to make this more explicit, such as “You are not authorized to work over 40 hours” and if she shows up to work extra hours she should be sent home. His statement that “she can stop at 40 hours if she wants to, but if she chooses to work more hours the pay will be the same” may not be strong enough to protect him from the liability to pay her overtime, but then again it may. If this goes much further she may need to consult a lawyer.

210.430(a) Hourly Rate Employees: If an employee is employed solely on the basis of a single hourly rate, the hourly rate is the “regular rate”. For overtime hours, the employees must be paid, in addition to the straight time hourly earning, a sum determined by multiplying one-half the hourly rate by the number of hours worked over the maximum set by statute.

Note the use of the word “must” (as opposed to “shall”) and without any other stipulations.
I understand where you’re coming from, but I’d think that unless there’s an employee manual stating that overtime must be authorized by someone, she’d be in the clear.

Also, I’d think that “you can work more than 40 hours, but it’s on straight time” isn’t that much different than “You can work for me if you want, but I’m only going to pay you $5/hour”. Just because someone is willing (or implies they’re willing) to work for less than minimum wage doesn’t make it legal to do so. Similarly, just because someone is willing to work for less than time and a half after 40 hours, doesn’t make it legal for the employer to do so.

I think what the employer needs to do is pay people time and a half for overtime or(and) stop offering overtime.

I think it’s to the contrary. Under federal law, at least, “Work not requested but suffered or permitted is work time.” 29 C.F.R. 785.11. And, “it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed.” 29 C.F.R. 785.13. I think it may be different if the employer doesn’t know (or have reason to know) the person is working, but how likely is that?

The question as I see it is whether or not your sister is actually recording that time. I mean, her time sheets may say “40 hours” every week, and she’s putting in another 40 off the clock. And her boss has told her she doesn’t have to do that, so there’s at least a tiny little fig leaf there for him/the company.

But if she is reporting it, then the company can be in huge trouble if they’re NOT paying her overtime of some fashion for time above 40 hours a week (or IIRC, 80 in a pay period), as that’s part of Federal law, and may be part of state law, if she’s not an exempt employee.

AFAIK, it doesn’t matter if she’s choosing to work more than 40; if she works it, they’re on the hook to pay overtime, IF it’s on the clock and she’s being paid for it.

IANAL, so I can only talk to it from the perspective of trainings I have received as a manager. We are told that, even if we directly order an hourly employee to not work overtime, if they do, we have to pay them overtime. We have no option; if they work it, we must pay it.

Now, we can then fire them for disobeying, but “consent” or “willingness” don’t come into pay. You work OT, you get paid OT.

The language about work being suffered or permitted is , as I understand it , in there to prevent the employer making weasel words in agreements about ’ well we didn’t actually tell them to work, so we dont have to pay OT. Mangagment has to stop the work and send people home or explicitly state workis to finish .

This is the wording that I imagined but did not know about. That is why I said that the employer may have to proactively send her home if she shows up to work overtime that he does not want her to work.

Is that supposed to be some kind of fancy car…sounds like a sewing machine or an electronic piano?

Yes, Maserati is a luxury car brand.