Overtime pay law & union contracts

In My Humble Opinion
1

I got into a small debate with a coworker today about how we get paid for overtime at our company. If her explanation of how they calculate our overtime is correct, then I believe we’re getting screwed somewhere.

Part of the “confusion” here is that we’re a union shop (a hotel & restaurant union), and our contract includes this bit about overtime pay that is relevant to the debate:

• We receive overtime pay (time and a half) for any hours worked beyond 8 hours in a single day.

Then there is the Federal labor law that stipulates that we be paid time and a half for all hours worked beyond 40 in a standard work week.

So here’s my specific situation regarding my most-recently-completed work week:

I was scheduled to work six days in a row. I’m a chef in the “conventions/banquets” department, so I work whenever there is an event scheduled, and this week there were several groups booked over this six-day stretch. My scheduled hours were as follows:

Tue: 10 hours
Wed: 8 hours
Thu: 10.5 hours
Fri: 13 hours (but ended up working 14.5 hours)
Sat: 9 hours (actually worked 9.5)
Sun: 8 hours (worked 7.5)

(our work week is Monday - Sunday)

So, per the union contract, I worked “overtime” of 2 hours on Tuesday, 2.5 hours on Thursday, 6.5 hours on Friday, and 1.5 hours on Saturday. No debate with my coworker there. The debate starts with the fact that, by the end of my day on Friday, I had already accumulated 43 hours total time worked, with two scheduled days left to work, and therefore according to the Federal law, all of the hours I subsequently worked on Saturday and Sunday are “overtime” for which I should receive appropriate overtime pay.

My coworker, OTOH, is trying to tell me that they disregard the “daily” overtime hours (that is, the hours worked beyond 8 in a day), and only count the “normal” hours when calculating at what point we hit 40 hours for the week. By her argument, therefore, I didn’t reach 40 hours until I passed eight hours on Saturday. We both agree that all of my Sunday hours count as overtime.

So you see there’s an 8-hour difference of opinion here. (Note: the last 3 hours I worked on Friday were already “overtime” hours per the union contract since they were past 8 hours for the day; the fact that those 3 hours were also beyond 40 hours for the week is irrelevant - they’re OT either way but there’s no “doubling up” on the OT pay. The only hours in question here are the first 8 hours I worked on Saturday.)

I should mention that, while I’ve made a career of being a cook/chef, my actual “formal” education (if you want to call a 1-year trade school program “formal”) was in accounting, including payroll accounting. And my understanding of the labor laws regarding overtime is that they cannot be set aside either through collective bargaining (my situation) or through “mutual agreement” between individual employers and employees (to prevent an employer from coercing an employee into “agreeing” to waive his/her rights) [ETA: Okay, I understand there are “exempt” classes of employees, but I’m not one of those]. In other words, the Federal law is inviolate and applies no matter what. And this is the root of my position that all of the hours I worked on Saturday were “overtime”, not just the last 1.5 hours. The Federal law specifies a simple 40-hour work week with any hours beyond that being “overtime”, and doesn’t draw and distinction between “normal” hours and third-party-defined “overtime” hours for the purpose of determining when that 40-hour mark is reached.

Who is correct here?

Addendum: I did some quick math and see that my total hours for this work week came to 60. Under the Federal law only, that would entitle me to a simple 20 hours of overtime pay, but by including the union’s OT rules, I should receive a total of 28 hours of OT pay. If my coworker is correct about how the company calculates this stuff, then they’re effectively nullifying the OT benefits stipulated in our union contract. In that case, it would appear I could file grievances with both the union and the Department of Labor.

2

I’m not familiar with your labour laws however the "overtime after forty hours clause"more than likely refers to the situation were your haven’t worked forty hours and still expect to be paid overtime. Generally speaking your sixth day at work should be all overtime but it gets complicated when employees start having sick days and expect to make it up the sixth day with overtime rates.

3

Your union contract may be different, but that’s not how I’ve generally seen overtime paid. It just ticks in over 40 hours, not on a per-day basis. Thus, if you work 20 hours a week, but in two 10 hour days, you get no overtime.

4

The union contract at the shop where I work stipulates that anything over 8 hours per day is overtime, and that’s the way it is paid.

When I moved to a non-union hourly position 5 years ago my overtime rules changed to the 40 hours per week.

Actually when I first made the move the district rules still paid overtime daily, even for certain non-union positions. When payroll was centralized to the corporate level they forced us to the stricter rule.

5

Basically, what my argument boils down to is:

• The union rule is intended to be in addition to the Federal law, not instead of the law. So that, before 40 hours the union rule applies, and after 40 hours the Federal law applies.

• The company is not allowed to pick and choose which hours “count” toward the 40 hours/week.

• If they are picking and choosing, they’re at best inadvertently violating the intent/spirit of the union rule, and at worst deliberately circumventing the rule.

Also, I’m perfectly willing to admit that I’ve misunderstood how the union rule is supposed to work. A union rep is supposed to be visiting later this month, so I plan to discuss this with him for clarification. Unfortunately, his visit is scheduled for a few days before the paycheck that the hours in question will appear on.

6

You worked a total of 59.5 hours. By federal labor laws your are intitled to 19.5 hours of overtime pay. By your union contract you lhave worked 19.5 hours of overtime. If your employeer pays you 19.5 hours of over time they are satisfiying both conditions of employment.

Read your contract it should have a clause in there stating something to the effect that there is no compounding of overtime.

The feds do not care how it is caculated as long as the total is at lease 19.5 hrs ot.

The only question is double time pay. For your 14.5 hour day. Does your contract have a double time pay clause in it.

7

You do not have to wait for your union rep to show. Call and ask to talk to a union rep. They should be willing to help a member understand how their contract works.

By the way do you have a copy of your contract? And have you reAd it? If not when you call ask for a copy of your contract. I am surprised at how many union members never read their contract, or show up for union meetings.

8

Since this is about legal issues, it’s best handled in IMHO rather than GQ.

Colibri
General Questions Moderator

9

If the contract calls for both overtime for more than 8 hours/day and 40 hours/week, then he’s entitled to both daily and weekly overtime, as follows:

Tue: 10 hours: 8 hrs straight time, 2 hours OT, cumulative hours/week 10

Wed: 8 hours: 8 hrs ST, CH/W 18

Thu: 10.5 hours: 8 hrs ST, 2.5 hrs OT, CH/W 28.5

On the next 3 days, you have an issue – what exactly do you mean by “N hours (actually worked X hours)”? If you were compelled to clock out and continue working, that’s a form of labor law fraud. If you clocked out and then gave them extra hours voluntarily, they may have a moral obligation to pay you, but AFAIK no legal one. If there were paid breaks, they count as time worked; unpaid breaks do not. For calculating my figures, I’m going to assume they are paying you for hours actually worked, not the first number – alter this as appropriate.

Fri: 13 hours (but ended up working 14.5 hours): 8 hrs ST, 6.5 OT on the daily scale, but 43 hrs CH/W, so this now converts to 5 hrs ST, 9.5 hrs OT

Sat: 9 hours (actually worked 9.5): 9.5 hrs, all OT, since you’re over 40 hrs/wk

Sun: 8 hours (worked 7.5): 7.5 hrs, all OT, since you’re over 40 hrs/wk

Total: 29 hrs ST, 31 hrs OT.

If it were that OT only kicks in after you put in a 40 hour week, there would be no point to the over 8 hrs/day provision – they could work you three 13.5 hour das a week, sending you home a half hour early on the third one, and pay you only straight pay. While my numbers seem to be screwing the company, that’s what they agreed to in the contract – he gets OT whenever he works (a) more than 8 hours a day OR (b) more than 40 hours a week. If the contract read that he gets OT for more than 8 hours a day and when he puts in over 40 hours of ST a week, individual-day OT being left out of the weekly calculation, that would be a different story.

10

Having had this same question come up the answer I was given (granted under CA law)

Hours they already paid you overtime in a given day do not count towards the 40 as they HAVE paid you overtime on those already.

You would only kick into automatic overtime for showing up when you have exceeded 40 hours of regular time in a week.

So as an example

Mon: 10 hours 8 regular 2 OT
Tue : 10 hours 8 regular 2 OT
Wed: 10 hours 8 regular 2 OT
Thu: 10 hours 8 regular 2 OT
Fri: 10 hours 8 regular 2 OT
Sat: 8 hours (all OT as 40 hr ergular time per week has been exceeded)

11

It’s not before and after, it’s* below *and above. If your total time worked is less than 40 hours, the union rule applies. Above 40 hours, the Federal law applies. Unless there is some very specific language in your union contract providing for double payment of overtime.

Nobody’s allowed to pick and choose- the Feds only care about total hours per week. If you worked 60 hours, as far as the Feds are concerned you are to get 20 hours of overtime. They don’t care if you got it for all of your work on Saturday and Sunday or you got it for 2 hours on Tues ,2.5 on Thurs and so on.

They’re not circumventing the purpose of the union rule. The purpose of the union rule is to ensure that you receive overtime pay for all hours worked over 8 in a single day - even if your total for the week is only 40 hours because you worked 4 10 hour days.

12

Polycarp, if that’s what the contract said, you’d be right. The OP didn’t say that, and I sincerely doubt that the contract does say that. The daily overtime is per the contract, the weekly overtime is a federal labor law. The feds don’t care that he’s already been credited overtime for working long days, the law says time-and-a-half (TAAH) for all hours over forty in a week; the fact that he gets paid TAAH before he reaches that threshold doesn’t mean that those hours “don’t count.” If he hadn’t worked at all on the weekend, he’d be entitled to 3 hours at TAAH under federal law – instead, the contract guarantees that he’d get 11. Those 11 hours satisfy the law, they don’t add to it. If daily overtime were the only rule, he’d only be getting 12.5 hours at TAAH – but the federal law doesn’t allow that, so he’s getting 20. That’s what the law is intended to do – ensure that long work weeks are properly compensated. The daily overtime provision of the contract is intended to get workers extra pay for long days, even if the weekly hours don’t add up to over 40; it doesn’t get piled on top of the federal minimum, it merely rises above it under some conditions.

13

Nametag has it correct here. The union will look at it this way anlong with the feds. You do not get to compound OT and get paid extra. Most union reps that I know would just shake their head over this thread. An what is being missed here is the doubel time for the 14.5 hour day, and only if his contract calls for it.

14

Sorry, I wasn’t clear about that. The first number is the number of hours I was originally scheduled to work. Because of the nature of our business (we don’t have a set “closing time” - we’re done when the work’s done), the “end of shift” time written on the schedule is simply a “best guess” by the schedule writer as to what time we should be done. So things like last-minute changes by the group we’re serving can make it take longer to get “done” (and less often, the changes mean we get done earlier than expected). We’re expected to stay as long as necessary, and we are paid for the extra time. On Friday, for example, the group had booked (months in advance) their dinner for 5:00, but on the actual day of the dinner — after the work schedule was already made — they decided to push it to 5:30, and then again to 5:45. Of course, the group doesn’t realize that the cooks who arrived at 5:00AM to prepare their breakfast are the same cooks who prepared their lunch and dinner and are now stuck working even longer. There’s also the factor that the employees don’t eat until the guests have finished and the room has been cleared of dirty dishes. Then the employees feast on the leftovers, and in the case of a buffet that means we cooks have to wait until all of our coworkers have eaten before we can start putting away the salad bar and finish cleaning the kitchen, which can keep us there even longer.

I’m not sure what you mean by “compound OT”, unless you mean getting paid OT twice. If that’s what you mean, you’re correct — an OT hour is paid per the union rule or per the law. There’s no doubling-up.

15

Here is the exact wording of the relevant section of our current union contract:

Section 8.02 - Overtime

a) Work performed over eight (8) hours per day, forty (40) hours per week, and on the seventh (7th) consecutive day shall be paid at time and one-half (1-1/2) the regular hourly scale.

b) Any employee called to work on the seventh (7th) consecutive day shall be given at least four (4) hours at time and one-half (1-1/2) the regular hourly scale.

c) The above provisions shall not apply to the housekeeping department or bell persons, who shall continue to be paid time and one-half (1-1/2) on the seventh (7th) consecutive day regardless of the number of hours worked.

d) The overtime provisions of the seventh (7th) consecutive day shall not apply to employees of the banquet department unless the work over eight (8) hours per day or have worked forty (40) hours in the preceding six (6) calendar days.

The “a)” section would seem to support my interpretation, based on the word “and” (bolded there by me). The “and” would suggest that I should receive OT pay for each condition that is met (assuming, of course, an implied “and” between the first two conditions). But again, I’ll need to speak with my union rep for clarification.

I’ve included the “7th consecutive day” stipulations, though they don’t apply in this case, since I only worked 6 days.

16

Your are trying to count the time worked and as overtime into the calculations for the straight time calculations worked to make the 40. The NLRB will only look at the total hours worked in the week and count those hours in excess of 40 to determine the proper OT hours and as long as th OT hours in the week are paid then they are happy, they do not care on which days of the week you get OT they only care if at the end of the week you get OT for every hour over 40.

Also does your contract have anything about getting paid double time after 10 or 12 hours? And is your meal time inclusive or exclusive (ie do you get paid for your meal time?)

17

“No” to the first question. For the second question, our meal periods are paid.

18

You need to bring that up the next time your contract is open.

19

It is dependent on the specific wording in your contract.

I once worked at a company where there were shortages of raw materials at certain times of the year. So we might be sent home early on Monday & Tuesday, then after a truck of raw materials arrived, we would work extra long shifts on Thursday & Friday. So we might work 4 hours each Mon & Tue, 0 on Wed, then 12 hours each day on Thu & Fri – total 32 hours. The employees thought they should get time-and-a-half for the extra 4 hours on Thu & Fri, but the company claimed the wording of the contract was only time after 40 hours, so that was what they paid.

That bothered employees, so at the next contract negotiation, the union insisted on re-wording this to either more than 8 hours per day or 40 hours per week. After that contract, they paid for overtime in either case – you might only work 2 or 3 days of the week, but still get some overtime pay.