I am afraid this is going to get complicated, but I think the company makes it complicated so they do not have to pay overtime. Please bear with me. I will be more than happy to give additional information if you need further clarification. Here is the situation.

• I live and work in Wisconsin as a full-time employee. I work at home as a medical transcriptionist/editor. They pay my insurance, I get holiday pay and paid time off, and they take out all taxes, etc, so I am not an independent contractor. (I get confused with the whole exempt – non-exempt status label).

• The company home office is in California. It is a small company – less than 100 employees total throughout the United States.

• As a medical transcriptionist, I get paid a rate of so many cents per line typed. (i.e. $0.10 cpl)

• As an editor I get paid $15 an hour, and when offered this position, my schedule was to be 8 hours per day, Monday through Friday, with 1 weekend per month of 12 hours per day on Saturday and Sunday. Overtime was inevitable.

• Pay Periods run the 1st through the 15th; and 16th through end of the month. We have scheduled work shifts (i.e. Monday through Friday, 1 PM to 9 PM).

• There are no "time cards" so to speak. The computer records when we sign on at the beginning of our shift and when we sign off at the end of the day.

• They pay "overtime" at 1-1/2 times the cpl rate when typing and 1-1/2 times hourly rate for editing.

• They call "overtime" anything typed beyond our normal shift and/or our days off. Since there are no "time cards" they request that we submit an E-Mail at the end of the Pay Period with the number of lines we typed during "overtime." They state "overtime must be pre-approved."

• Prior to May 25, I worked only as a transcriptionist. Then for one week (May 25 to May 31), I trained as an Editor. On June 1, 2006, I started working as a dual status – transcriptionist / editor.

• Because they are trying to cover 24/7, during this first pay period (June 1-15) they kept changing my schedule, so what ended up happening was that I worked 15 of the 15 days, without any days off.

• I know Overtime is after 40 hours per week, but because of the 1-15 and 16-end of the month format, there are often months when there is only one Sunday-Saturday week, and 2 partial weeks. Deducting for 2 days per week off, we typically work 11 or 12 full days per pay period.

QUESTION: How do we know when 40 hours are up with this type of schedule?

• Because the first pay period was so screwed up, I ended up working 85.5 hours as an editor and 34.5 hours as a transcriptionist. Because they kept changing the schedule, I went by their original schedule of Monday through Friday, and put in for 77 hours of regular editing plus 8.5 hours of overtime editing; and then put in for the lines I typed on both Saturdays and Sundays as overtime.

• When I received my paycheck, I was paid 77 hours for the regular editing, but nothing for the 8.5 hours of overtime editing. I was however, paid 1-1/2 times my lines for the typing overtime I had submitted.

• I did not question this because it was only 8.5 hours, I had no clue when 40 hours was officially up, and I did not want to get fired. However, I feel I should have at least been paid straight time for those 8.5 hours of editing – instead I was paid nothing.

• Now for the second half of June. They informed me that I was not producing as much as they expected after working for 2 weeks as an editor. I told them it was still learning but would try to steadily increase my production.

• Because of illnesses, power failures, and other problems, I again ended up working 14 of the 15 days in this pay period, and they added me to the weekend shifts, which are 12 hours per day on Saturday and Sunday. Several days, they called and asked that I start earlier than scheduled to cover for illness, power failures, etc, so there is no way they can say my overtime was not approved.

• On this current paycheck, I worked a total of 130.75 hours – 92 overtime scheduled hours as an editor and 38.75 hours overtime as an editor. I typed very little, but that was also during "overtime."

• When I received this paycheck, I was only paid for 92 straight hours of editing and for my typing lines. Again, I was paid nothing for overtime editing. I was also not even paid straight time for those extra 38.75 hours. No matter how they try to break up these weeks, there is no way I did not work over 40 hours in a week.

• Their paycheck stubs list no hours. It only gives what the amount is for and the total amount. (i.e. Transcription $213.56, Transcription OT $310.94)

QUESTION: I do not want to confront them and get fired without the facts on my side. Can they say they are not paying for those extra hours because I am not meeting their minimum production? Production is not a part of my editing pay. It is strictly $15 per hour. Is there any penalty for not paying me for the hours I worked, on top of what they already owe me should I file a complaint? :(

I do not want to get fired. How do I handle this? If they are not going to compensate me, at least at straight time, where do I go to file a complaint? If I file a complaint and they do fire me, is that grounds for wrongful termination?

Thank you for wading through this mess. I know that other employees may also be affected and would like to be able to assist them should the question arise in their pay also.

Thanks for your time.

Actually, I didn't wade through all this. But, the answer to the basic premise is "what is the workweek?". The employer must define the 7-day workweek, which must begin on a day/time certain and which must be used to calculate overtime. Note that this is not necessarily YOUR scheduled work "week". Before you can do anything, you need to know what the employer's defined "workweek" is. I would also say that paying nonexempt employees (which you are) on a semi-monthly basis can be much more confusing, because the workweeks nearly ever coincide exactly with the pay period.

Thank you so much for your fast response. I believe I was told at one point that the work week is Monday through Sunday.

Regardless of when they say their work week begins and ends, having worked 130.75 hours in a 15 day pay period, that averages out of 8.7 hours per day, which means I must have hit overtime at some point.

QUESTIONS:
1. I do need to know, however, even if they can claim I did not work over 40 hours in their "work week," am I not entitled to receive pay for the entire 130.75 hours for the pay period, even if it is at regular pay? I only received pay for 92 hours, which was what I submitted as my scheduled work time, with 38.75 hours of overtime.

2. Can the employer be penalized for not paying me for all the hours I worked, whether straight time or overtime? If so, how much can they be penalized for each occurrence?

3. Where do I go to file a complaint?

Thank you again for your response. It was very helpful. I hope you can answer the remaining questions I have.

This site is great for providing much needed information. I am very happy I found it.
:)

Not necessarily. Each workweek stands alone. As you can figure, with a semi-monthly pay frequency, there is almost always going to be the situation where the workweek has not yet ended when the pay period ends; therefore, overtime could not be determined until the workweek is completed, which falls into the following pay period.

1. Of course, you must be paid for all hours worked and it would be to the employer's advantage to at least pay it all at straight-time and work out the overtime later.

2. Whether or not the employer can be penalized for failure to pay and violation of overtime regulations is up to the state and whether or not it was "willful" or just an isolated "mistake". I'm not privy to those regulations, but I do know that the employee does not reap a financial benefit from any fines that may be assessed in your state.

3. What I recommend you do is review your time as far back as you can go, workweek by workweek. Then bump that up against your paystubs, remembering that the overtime for a particular workweek may not be able to be calculated until the following pay period. Once you have that, you will have good documentation to file a claim with the state Dept. of Labor for unpaid wages. Here's a good place to start:
http://www.dwd.state.wi.us/er/labor_standards_bureau/who_may_file_a_wage_claim.htm

Thank you again. I will definitely have to get out my calendar and plot exactly when the overtime occurred.

This was the second payperiod in a row where I was not paid for anything for hours I had submitted as overtime. In both cases, they paid me only for the hours I submitted as regular hours, and totally ignored the hours I submitted as overtime hours.

I happened to be looking at some of the other posts, and there was something about over 12-hours per day, and on the 7th day. Is that just in certain states? Does it apply in Wisconsin?

The other editors at this company work in Pennsylvania, West Virginia, Oklahoma, and Texas, and I am in Wisconsin. I assume that each of us would have to contact our particular state's Department of Labor. Is there somewhere on this site that has a link to each of these states, to make it a little easier to find the correct page?

Again, thank you so much. This has certainly been eye opening. ;)

Yes, every state can be different and none of the states you mentioned require daily or 7th day overtime. I sent you a PM regarding your other query.

Wanted to thank you for the information. Very helpful. :d