WTF D.O.L.? Final Overtime Rules Effective December 1, 2016

[k9bfriender]

@Boyo_Jim

Yes, it is so bad using real numbers. Let’s split the difference – 55 hours for $650, That’s less than $12/hour, which as I’ve already stated, is suckage for a manager. And if you want to say he really isn’t in fact a manager, then you’re calling him one to deliberately bypass overtime rules.

If he went out with his education and experience, he would probably not get much more than $10 an hour. And that would be in food service, which he did for long enough, and no longer wishes to do.

Wendy’s around here has shift managers working for $9.50 an hour cap. I have a friend that has been a shift leader for a chain bistro for nearly 20 years. He makes $13 an hour, and doesn’t get overtime. (He asks if I am hiring from time to time.) For that kind of work for that amount of time, my manger is much happier than he.

Why would I want to say that he isn’t a manager? He does quite a bit of managerial work. Much more time in those roles than anything labor related. I suppose I do not know for absolute certain that he passes the “duties” test, as I don’t track all his time doing everything, but I am pretty certain that at least half of his time is in some level of managerial role, rather than labor. He does do some labor tasks at the beginning and end of the day, but so do I, and they are less than the tasks that I had to do as a manager previously. He makes more working for me than he ever has previously. He makes more than most others in the industry. He makes more than most of his peers.

Sure, I’d love to pay him more. I’d love to pay all my employees more. I’d love to pay myself more even. Considering that my competition is paying their workers less than minimum wage under the table (I know this because I have poached some of their better employees, they are much happier now), I would say I am doing pretty well towards my employees.

I am not sure where all this animosity comes from. Do you all have this much distrust for every local small business you frequent? I guarantee you, they are just as much on a short budget as I, and they probably do not pay their employees and managers much better. I know for a fact, that many businesses around me pay much less. They tell me that I am overly generous with my compensation. They laugh at me for even having all of my employees on payroll, rather than paying them under the table. I am doing the best I can, while following the laws and regulations. I would say I am probably doing better than the overwhelming majority of small business when it comes to compensating my employees fairly. I know I am doing much better than most chain stores.

I really do not appreciate the insinuations and accusations that are leveled here either. As this post has actually taken me quite a while to compose, my manager has read it, and suggested many comments to make in reply that are not appropriate for this forum.

@dmc

That’s pretty much the definition of “on call”, as it means that you are working, if needed. Long long ago when I was on call, I got paid for 2 hours of work for a simple 15 second phone call (or anything that took less than 2 hours) and was paid for a full day if it went over 2. That is in addition to the flat dollar amount I received simply for being on call in the first place.

I’ve been on call before. Working for a utility company, being on call meant you had to be ready to drop everything and run out the door at a moment’s notice. I got paid a bit extra for that. I was also “on-call” at a restaurant I worked at, which meant that I had to go in if they called me on my day off, I did not get paid for that. (except hours if I did go in. So, yes, it is a definition of “on-call”, but the poster made it sound like they were “on-call” as in they would need to come in at a moment’s notice.

It is great that you got paid for 2 hours for a 15 second phone call, but I don’t know that I could afford to be that generous, and I am pretty sure that your company was going well above and beyond what is legally required.

If I work 10 hours in the office and 60 at home, that is a 70 work week. Period.

Sure, but I was responding to those who felt that he was working 60 hours at the store, then having to go home and work from home, and then having to be on call. My point that you missed there was that his total time working for me does not ever go over 60 hours, and that his time in the store is very rarely if ever over 50.

So yeah, <50+<10=<60. Period.

[DrCube]

@k9bfriender

Not sure how you get a number that low. Even at 60 hours, at 650 a week, is $10.83, factoring OT takes it down to $9.28. Yours is a pretty loose approx., misleading even. Figure at 50 (more typical week)hours, that’s $11.81

Any reason you can’t just pay him $11.81/hour? Or $9.28 or whatever you are currently paying him per hour?

Like others said, there’s no reason to make him clock in and out and nothing preventing him from doing work at home. As far as unsteady paychecks due to varying hours, I’m pretty sure there’s nothing preventing you from flattening out his paychecks in some way you both agree on, like “This week you worked X hours more than normal. Want me to hold onto that until next week, when it looks like you’ll be working a few hours less than average?”. And there’s certainly no reason to pay him more, if both he and you are happy with the arrangement. But you will have to structure it as an hourly wage rather than as a weekly salary.

Yeah, it might be more of a pain in the ass than a simple $X paycheck every week, regardless. But you’re a business owner, not a high school dropout. I agree there are some onerous regulations on small business owners, but this isn’t one of them. To grow or even survive as a business, you’re going to need to know how to do payroll, even if you have more employees. Hell, maybe this manager of yours can figure it out himself?

[watchwolf49]

@k9bfriender

[snip] … I am not sure I can follow your math there. $270 a week more is not less.

That last bit of math I could follow, just not sure if it’s a random thought, or somehow related to the post … [snap]

$700 per week for 60 hrs gives $11.67/hr … starting Dec 1st, only the first 40 hrs pays $11.67, the other 20 hours pay $17.50, or $817 a week … $100 a week is more … it appears I overstated my case.

The “$10/hr –> $400 a week” was to be compared to some earlier posts, which you noted in the rest of the quoted text.

@k9bfriender

[snip] … He does do payroll. He does scheduling. He posts pictures of our clients. He handles quite a bit of administrative stuff so I don’t have to.

He also sits around and plays facebook games when there is nothing immediate that needs to be done. I don’t care, it’s not like I am paying him by the hour, yet … [snap]

The OP referenced “my Payroll company” … wages must be low there if $12/hr buys that much trust.

=======

Sounds like you’re just starting out … you have my admiration … instead of working 8 hours a day making someone else rich, you’re working 20 hours a day making yourself rich … what a great county !!!

[k9bfriender]

@DrCube

Any reason you can’t just pay him $11.81/hour? Or $9.28 or whatever you are currently paying him per hour?

Like others said, there’s no reason to make him clock in and out and nothing preventing him from doing work at home. As far as unsteady paychecks due to varying hours, I’m pretty sure there’s nothing preventing you from flattening out his paychecks in some way you both agree on, like “This week you worked X hours more than normal. Want me to hold onto that until next week, when it looks like you’ll be working a few hours less than average?”. And there’s certainly no reason to pay him more, if both he and you are happy with the arrangement. But you will have to structure it as an hourly wage rather than as a weekly salary.

I like to do things by the book. Liability reasons if nothing else. If he is hurt on the job but not “clocked in” then there could be issues with workers comp. If he is hurt on the way home from work, but still “clocked in” then I could find my business being liable for injuries, rather than his insurance. I don’t know that it would be impossible to work things out that way, but it is a concern of mine. And your quote of “want me to hold onto that…” is, I am pretty sure, illegal. I am very close to completely certain about that one. I could probably get away with it, but I am not trying to find out how to get away with not following the laws, but how to comply with them without too great an increased burden.

Yeah, it might be more of a pain in the ass than a simple $X paycheck every week, regardless. But you’re a business owner, not a high school dropout. I agree there are some onerous regulations on small business owners, but this isn’t one of them. To grow or even survive as a business, you’re going to need to know how to do payroll, even if you have more employees. Hell, maybe this manager of yours can figure it out himself?

I already have 6 other employees that are non-exempt. I do payroll already for them. I have a payroll company to take care of taxes and such, I started out doing it myself, but it was simpler and less liability to let a professional payroll company take care of issuing paychecks (with direct deposit), withholding taxes, and I don’t think I could set up an IRA without their help.

Unless one of you has a direct line to the DOL and are willing and able to get it changed (which I doubt, but I could hope), then yes, come December, I will be making the change to pay him hourly. We will figure out what is best for that. The rate I am growing this spring, I may even be able to pay him the $913, but that is extremely optimistic.

I do not disagree with the amount, really. I do disagree in how quickly it is being implemented. A couple hundred increase a year over a few years would have been much easier for small businesses like mine to adapt.

[Dag_Otto]

@k9bfriender

Not sure how you get a number that low. Even at 60 hours, at 650 a week, is $10.83, factoring OT takes it down to $9.28. Yours is a pretty loose approx., misleading even. Figure at 50 (more typical week)hours, that’s $11.81

My employees, of which I am up to 6 now, make a range from $11 an hour to $20.

Maybe I’m not understanding the situation, but the way this reads to me is that you pay this manager roughly $11.81 per hour. Which is on the low side of the $11 to $20 range. Five other employees, who make anywhere from a little less ($11) to quite a bit more ($20). So who exactly is your manager managing?

[Chronos]

This is either a rant or a debate, not a factual question. I’m reporting it for a move.

[doreen]

@k9bfriender

I like to do things by the book. Liability reasons if nothing else. If he is hurt on the job but not “clocked in” then there could be issues with workers comp. If he is hurt on the way home from work, but still “clocked in” then I could find my business being liable for injuries, rather than his insurance. I don’t know that it would be impossible to work things out that way, but it is a concern of mine.

I think you are mixing up the concepts of tracking time and punching a literal or virtual time clock. It’s been over 20 years since I’ve worked in a place with any sort of a time clock. First, they used paper timesheets where employees self-reported their time and my employer now uses electronic timesheets where people self-report their time- in other words, the electronic timesheet does not require people to sign in at 9 am on Tuesday to get credit for being at work at 9am on Tuesday. They can go in on Friday and record all of their ins and outs for the previous week - including “out” at 5 pm when they leave the worksite and back in from 6-10 pm if they work from home. In fact, the law only requires a record of total hours worked, not the specific times worked, so you could have your employee fill out a timesheet that simply says he worked X hours for the week of 5/22 to 5/28.
You are correct that you cannot hold over some hours until the next week. And you are correct that it would be easier for businesses to adapt if it were more phased in- but that’s only because the minimum salary hasn’t been adjusted for so long. Thats 's why there’s an automatic adjustment built in going forward - it was going to be yearly but businesses protested and it will be every three years.

[Atamasama]

I haven’t had a time clock for about 20 years either, and I’ve been hourly for almost that entire time at one place or another. (I had a job for about a year-and-a-half where I was salaried, overtime exempt.) I pretty much just approximate how many hours each day I work and report that (rounding to the nearest half hour). It’s not too hard if you do it each day.

As for moving hours worked in one week to another week to avoid going to overtime, that’s not illegal if there’s a formal agreement between the employee and employer to use such a schedule. For example, one of the available “flex” work schedule options at my job is to work “Crazy Nines”, where you work 9 hours a day Monday-Thursday, and 8 hours on Friday. The following week you’ll work the same 9 hours a day Monday-Thursday, but take that Friday off. The first week is technically a 44 hour work week but you only report the first 4 hours of that Friday for that week and the second 4 hours on Friday the following week, so on paper it ends up evening out to 40 hours a week.

I know this arrangement is legal because my employer is the agency that sets and enforces the labor laws in my state. Check with a lawyer as suggested elsewhere in this thread before making an assumption about what is or isn’t legal.

[sbunny8]

#1 It shouldn’t be necessary for him to literally clock in and out. All you have to do is have him fill in a time card at the end of each pay period. My spouse gets paid once a month, has to fill in a spreadsheet on the last day of each month showing “8” on pretty much every day worked (and “0” on days not worked). Where I work, we do the same thing except it’s hand written. Most days we put “8” on the time card, but maybe once or twice a month there’s a day that’s “9” or “4” or “8.5”. And if we do on-call work from home, those numbers get added in too. Time spent talking on the phone counts. But no actual clock is involved in either case; it’s all based on self-reporting from the employees.

#2 The sudden jump you’re describing only seems sudden because when the rule was originally implemented they didn’t index it for inflation and now the DOJ is adjusting it in one big leap to cover all the inflation that’s happened in the intervening years. It makes sense to me.

[k9bfriender]

Sorry to take so long to get back to this, the weekend is pretty busy for me around here.

@Dag_Otto

Maybe I’m not understanding the situation, but the way this reads to me is that you pay this manager roughly $11.81 per hour. Which is on the low side of the $11 to $20 range. Five other employees, who make anywhere from a little less ($11) to quite a bit more ($20). So who exactly is your manager managing?

The talent. Groomers on commission, they make around $20 an hour. I have a couple other bathers that are in training to be groomers, and I pay them around $15 after tips. Bathers make $11.

He was with me from the beginning, I hired him as a bather at barely over minimum wage. As I hired more bathers, he was training and supervising them. At the beginning of last year, I moved him up to a salaried position, and over the last few months, I have been teaching him all the other fun stuff involved around here, including managing employees that have skills that he doesn’t.

@Chronos

This is either a rant or a debate, not a factual question. I’m reporting it for a move.

Meant to be a question, maybe came across a bit ranty, but that was meant solely as backstory, and turned into a debate about my business, which was not my intention. Though, there is actually extremely useful information here now, that I was looking for, that I will take into account as I move forward.

Had I seen that other thread, I would probably not have posted a new one, as there was useful information in there as well.

@doreen

In fact, the law only requires a record of total hours worked, not the specific times worked, so you could have your employee fill out a timesheet that simply says he worked X hours for the week of 5/22 to 5/28.

You are correct that you cannot hold over some hours until the next week. And you are correct that it would be easier for businesses to adapt if it were more phased in- but that’s only because the minimum salary hasn’t been adjusted for so long. Thats 's why there’s an automatic adjustment built in going forward - it was going to be yearly but businesses protested and it will be every three years.

This is extremely useful. I hate the DOL’s website, anything that is not on the labor law poster is a pain to find. Could I bother you for the location of those rules? I would appreciate that greatly.

@Atamasama

I haven’t had a time clock for about 20 years either, and I’ve been hourly for almost that entire time at one place or another. (I had a job for about a year-and-a-half where I was salaried, overtime exempt.) I pretty much just approximate how many hours each day I work and report that (rounding to the nearest half hour). It’s not too hard if you do it each day.

As for moving hours worked in one week to another week to avoid going to overtime, that’s not illegal if there’s a formal agreement between the employee and employer to use such a schedule. For example, one of the available “flex” work schedule options at my job is to work “Crazy Nines”, where you work 9 hours a day Monday-Thursday, and 8 hours on Friday. The following week you’ll work the same 9 hours a day Monday-Thursday, but take that Friday off. The first week is technically a 44 hour work week but you only report the first 4 hours of that Friday for that week and the second 4 hours on Friday the following week, so on paper it ends up evening out to 40 hours a week.

I know this arrangement is legal because my employer is the agency that sets and enforces the labor laws in my state. Check with a lawyer as suggested elsewhere in this thread before making an assumption about what is or isn’t legal.

I will have to look into that one as well. That goes against what I have been told in the past. I have no reason to doubt you though, and if true, that information is pretty awesome. Could I trouble you for a cite on that?

@sbunny8

#2 The sudden jump you’re describing only seems sudden because when the rule was originally implemented they didn’t index it for inflation and now the DOJ is adjusting it in one big leap to cover all the inflation that’s happened in the intervening years. It makes sense to me.

The short time frame does make it hard to adjust. 6 months to more than double seems a bit steep to me, but if it seems to make sense to everyone else, then I suppose I am just wrong on that.

There is also a good chance that we may, even though it does not make sense from a tax perspective yet, just reincorporate as a partnership, then I don’t have to pay him anything at all. I need to talk to my lawyer and CPA to see if that is a viable option.

[Atamasama]

@k9bfriender

This is extremely useful. I hate the DOL’s website, anything that is not on the labor law poster is a pain to find. Could I bother you for the location of those rules? I would appreciate that greatly.

Something of an FAQ on the schedule:
http://www.lcwlegal.com/84915

A discussion about this situation here:
https://www.avvo.com/legal-answers/9-80-schedule-with-no-overtime-pay-852276.html

Note the first response (from a lawyer) states that working a 44 hour week under a 9/80 schedule entitles you to overtime but that lawyer is later corrected, and I’ll quote, “The Alternative Workweek Laws will allow your employer to provide this type of arrangement so long as you’re not working more than 10 hours a day. The employer would have to set up this arrangement according to law to be legal, but if they did, you don’t get overtime.”

That discussion was between lawyers in California arguing about the state’s labor laws. You’re going to want to check the laws in your state. Consult with your state’s labor agency and/or an employment lawyer. The states and federal government recognize that a flexible schedule can be beneficial to workers and give you some wiggle room to accommodate such a schedule and not force you to choose between a 9-5 sort of schedule and having to pay overtime.

The DOL talks about this too, so I’ll include it, but it’s referencing public (I assume federal) employees, not the general public. But it seems consistent with what the states are doing:
https://www.dol.gov/whd/opinion/FLSANA/2004/2004_10_08_18FLSA_NA_aws.htm

[doreen]

@k9bfriender

This is extremely useful. I hate the DOL’s website, anything that is not on the labor law poster is a pain to find. Could I bother you for the location of those rules? I would appreciate that greatly.

Here’s a DOL factsheet - not only does it state there is no required form, it even provides a sample of a non-timeclock system

Fact Sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA) | U.S. Department of Labor