In our call center people who speak foreign languages are paid $1 extra per hour that they work. Technically the differential pay is only given when you are taking language calls, but since they always have you available in both the English queue and the language queue, they always pay you the extra dollar for worked hours.

They do not pay the extra $1 for holidays nor for vacation time. That is fine... seems legal and such.

They also leave out the extra $1 per hopur when calculating our OT. This causes me some problems. That can add up over the course of a year...

Is this legal... I'd like mutliple thoughts and guidance please. :rolleyes:

Your OT pay should include the $1.00. OT is calculated on time worked, and if you are paid the 1.00 per hour for the straight hours, they can hardly just take it out for OT purposes. If you worked those hours in a bilingual capacity, then you should be paid as such.

Thanks for the response.

Next, we are paid monthly incentive bonuses on top of our salary and language pay. They call it "Sales Incentive." Average months is a couple of hundred dollars, some months it is over $500.

I beleive I have read CA DLSE opinion letters correctly that these wages are also suhbject to being counted as regular wages for OT calculation. Am I right.

Next issue with that, example: March's earnings are paid in April so they have time to verify and calculate the bonuses. They also have to wait for some intstallations to ocmplete - or not. Reasonable, no problem. The question is do they apply the bonus money to wages for the month in which they are earned or in the month they are paid. And how is it done... maybe a simple example, please.

Thanks for your help.

It always goes by the month paid. Same applies to your regular wages. Say you work the last week of July, but get paid for it the first week in August. Those wages are counted as August's wages. Same with at the end of the year. You work the last week in Dec, but get paid in January. Those wages in January, although EARNED in Dec, go towards the new years wages/taxes. Make sense? Your bonus is just that. A bonus. It is extra. And they aren't required to give it to you, most companies do it as an incentive to attract or retain people, as well as give people an incentive to sell more, which means they profit more. They aren't required to use that amount in any other way. It is completely seperate from your hourly wage.

Under federal (FLSA) rules, non-discretionary bonus payments affect overtime calcuation and discretionary bonus payments do not. You can find the exact rules for discretionary bonus payments at the webpage below. Any bonus payment failing to meet those rules is non-discretionary (affecting overtime).

The difference between the two can be complicated. I have been in meetings where the company sat down and formally structured bonus plans in such a way to make sure which type of plan they were dealing with. This is not a very good area (from the employer side) to be unclear on the rules. Most discretionary bonus plans I have been involved with have at least one formal element not directly linked to productive labor. Company profitiability or manager perogative would be an example of such an element. The non-discretionary bonus plans I have been involved with had all elements directly linked to productive labor. For example, I worked for a manufacturing company where all hourly production employees who had perfect attendance during the month received a (non-discretionary) bonus which retroactively caused prior pay periods overtime to recalculate. An employee who had perfect attendance but was hated by their manager still got their bonus.

http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_778/29CFR778.211.htm

No, it doesn't go by the month paid, it must be allocated to the period for which the bonus was earned. "Nondiscretionary" bonuses must be included in calculation of the regular rate of pay, which is used to calculate the premium portion of overtime. This is a federal requirement.
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_778/29CFR778.208.htm

Here's an example. The most simplistic way is to allocate the bonus equally to each week worked, and that is allowed by the FLSA, especially if the amount cannot reasonably be allocated to any particular week(s). This is not necessarily a "simple" calculation, but I'll try. ;)

March - earned $500 bonus paid in April
Normal base hourly rate $10
Week 1 - worked 40 hours - Regular Pay $400
Week 2 - worked 45 hours - Regular Pay $400, OT Pay $75 (ST = $50, OT Premium = $25)
Week 3 - worked 50 hours - Regular Pay $400, OT Pay $150 (ST = $100, OT premiums = $50)
Week 4 - worked 40 hours - Regular Pay $400

Regular rate of pay = (Total of Regular Pay + Straight-time portion of overtime + bonus) / total hours worked, so with 175 hrs @ $10 = ($1750 + $500) / 175 = $2250 / 175 = $12.88 (rounded) regular rate of pay.

Overtime premium (the half-time portion) due is (15 hrs * $12.88 * .5) = $96.60

Overtime premium already paid = $75 ($25 from week 2 and $50 from week 3)

Additional overtime premium due $21.60.

http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_778/29CFR778.108.htm
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_778/29CFR778.110.htm

Clear as mud? :confused: Sorry, best I could do. It's not an easy process.

You explained it quite well! And I totally agree that this is not an easy process to understand.

Thank you, kind sir. :D Which is probably why so many companies do it wrong.

Wow. I wonder if my previous employer was doing thing correctly. Does it vary by state at all? I suppose it would also depend on the bonus. For example, we did a $1.00 per sale. So if someone had gotten 50 sales that week, then their next paycheck would have a $50.00 bonus added in. This was seperate and never, never effected the rate of pay in any way.

No it doesn't. This is federal law as relates to nondiscretionary bonuses. As DAW explained, a nondiscretionary bonus is generally a quid pro quo plan, based on production. So if you produce XX sales or XX widgets, you receive Y dollars, that's nondiscretionary. I would remind you, however, that the "regular rate of pay" only applies to the premium portion (the "half-time") of overtime. Not straight time pay.

Thank you Patty!! I learned something new today!! :D

Wow Does it vary by state at all?

Federal law is basically a "floor". Employers cannot treat employees worse then allowed by federal law. Non-discretionary bonus effecting overtime calculation is a federal rule which must be followed in all 50 states. The entire FLSA (federal DOL) set of laws is a major part of U.S. payroll law.

States can have laws which are more favorable to the employee then federal law. Some states such as California have overtime rules more favorable to employees then federal law. States with little or no state payroll law look a lot like federal law. Florida for example (other then minimum wage) looks a lot like federal law.

The Payroll Source book (American Payroll Association) has a good handling on this and other payroll related subjects.

[quote]Some states such as California have overtime rules more favorable to employees then federal law[quote]

I will just point out that there are many cases where California has much less favorable laws than federal. In this case, the Original Poster should sue under Federal law rather than California law as she will get twice as much money. Certainly that is more favorable.

I have a lot of reasons to sue my recent employer. They are a large cable company (a). They are leaving the area and swapping footprints with (b). They both bought out (c).

I worked for (a) they have ALOT of OT violations and other issues with me and everyone as a whole, I need to sue them...

They are leaving the area and the local work is bening taken over by company (b).

Who gets sued? And am I under a deadline to sue them by Friday? Beforethey leave or do I end up suing both (a) and (b)?

Or do I just lose out?

I have a lot of reasons to sue my recent employer. They are a large cable company (a). They are leaving the area and swapping footprints with (b). They both bought out (c).

I worked for (a) they have ALOT of OT violations and other issues with me and everyone as a whole, I need to sue them...

They are leaving the area and the local work is bening taken over by company (b).

Who gets sued? And am I under a deadline to sue them by Friday? Beforethey leave or do I end up suing both (a) and (b)?

Or do I just lose out?

Your first step is to make a wage claim with DLSE. Please visit the attached links for additional information. If you have questions, you should contact DLSE directly.
http://www.dir.ca.gov/dlse/FAQ_Overtime.htm
http://www.dir.ca.gov/dlse/Policies.htm

Hello -- Curious whether smaller employers (in California) are exempt from FLSA laws? If so, what # of employees must you they have before those laws apply? Thanks.

Federal law is basically a "floor". Employers cannot treat employees worse then allowed by federal law. Non-discretionary bonus effecting overtime calculation is a federal rule which must be followed in all 50 states. The entire FLSA (federal DOL) set of laws is a major part of U.S. payroll law.

States can have laws which are more favorable to the employee then federal law. Some states such as California have overtime rules more favorable to employees then federal law. States with little or no state payroll law look a lot like federal law. Florida for example (other then minimum wage) looks a lot like federal law.

The Payroll Source book (American Payroll Association) has a good handling on this and other payroll related subjects.

The official federal rules are as follows. Number of employees per se is not one of the rules.

http://www.dol.gov/esa/regs/compliance/whd/fairpay/main.htm