I am an apt. maintenance man and I have been told that I have to take my overtime hours off..I don't have a problem with doing this,but they are telling me that if I can not take my hours off durin my work week(sunday thru saturday) that I will have to take them off the following week at time and a half....is this legal? I thought you can only take them off in your work week (sunday to saturday)not a week later...

I am not really sure what you mean by take my overtime hours off. Could you elaberate?

http://www.dol.gov/esa/regs/compliance/whd/whdfs23.htm

Ok so here is an example of whats happening right now:We get paid every 2 weeks,our pay weeks run from Sunday thru Saturday. I ended up with 6 hours of overtime last week,my new pay week started sunday,I am useing a vacation day on monday,and now they are telling me,that I have to use the 6 hours at time and a half,which ends up being 9 hours,towards my vacation day,instead of paying me for the 6 hours of overtime

Probably illegal. The one remaining question is whether or not your employer is subject to the federal FLSA law that the main overtime rules come from. The general rule is employers who have either $500K in annual sales or engage in interstate commerce are subject to the FLSA law.

http://www.dol.gov/esa/regs/compliance/whd/whdfs14.htm

Well the company I work for owns 4 apt. complex's in minnesota,and some in other states,which add up to 16 apt complex's,so I would say they make 500K ,so how would I go about makeing it clear to the,that they can't do this to there employees

You can file a wage claim with state DOL. You can print out the first factsheet that I gave you a pointer to, which includes the rules. You can try talking to your employer.

Past that however, the notion that anything can be "made clear" to employers is perhaps flawed. Some employers routinely terminate employees who complain. There is generally some degree of legal recourse against terminations that occured because a wage claim was filed, but no such legal recourse generally exists for employees who merely talk to their employers.

Private employers who wish to provide time off rather than overtime pay can provide the employee an hour and a half of time off for each overtime hr. worked, as long as the time off is taken during the same period as the extra hrs. worked.

Betty, when you say "period", do you mean pay period or week? If you mean week, the employer does NOT have to accrue at 1.5 time. If the employee works 10 hours one day and 8 hours for 3 days, 6 hours for one day, that's 40 hours worked and no overtime is due.

Federal law does NOT allow comp time, which is what "banking" overtime hours from one week to use in another week, is. Even if granted at time-and-a-half.

Private employers may not give employees straight compensatory time (one hr. off for every OT hr. worked) instead of overtime. - However:
Private employers who wish to provide time off rather than pay overtime have 2 options. 1) they may adjust an employee's hrs. within a workweek so that the employee does not earn OT. (ie by allowing an employee who has worked four 10-hr. days to take the rest of the week off. 2) provide the employee an hr. & a half of time off for each OT hr. worked, as long as the time off is taken during the same period as the extra hrs. are worked.

That's how it is worded -employment law pamphlet. In your case since there is no OT (didn't work over 40 hrs. wk.), they wouldn't have to give ANY time off or pay ANY OT - *it says for each OT hr. worked* - they didn't work any OT in your case for the week. They wouldn't be able to work the schedule for the week in your example anyway apparently. (their example M-T 4 days total of 37 hrs. worked, Fri. 5 hrs worked - totals 42 hrs. - (2 hrs OT at 1.5 time = 3 hrs time off) Gets 3 hrs. off Fri - works 5 hrs Fri. instead of 8.)

Patty - does this make sense to you - you know much more about payroll than me. It seems to make sense & it was indicated they can do that by an employment/labor lawyer.

The FLSA says that each workweek stands alone and, in that case, option #2 doesn't make any sense.
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_778/29CFR778.104.htm

With option two, the pay would net the same.

40 hr work week, $10/hr, bi-weekly pay period

"Normal" and Option 1
1st week 40@$10= $400
2cnd week 40@$10= $400
Gross for period= $800
-----------------------------
Option 2
1st week 40@$10 and 2@$15= $430
2cnd week 37@$10= $370
Gross for period= $800

That may be, and I don't disagree that the net would be the same, but the regulation seems very clear to me. That's comp time, which is not allowed in the private sector.

I would say it is a case of the employer changing the work schedule. Isn't comp time time off in-lieu of OT? With Option 2 the employee still got paid OT for hours worked in in the first week.

If the employee only got straight time for the OT hours in the first week, I would agree with you that it was comp time.

Comp time is banking overtime hours to take off in a subsequent workweek. The fact that the "overtime" hours are factored at 1.5 is irrelevant.

I must be reading 29 USC 207(o) and 29 CFR 553.22 wrong, because it seems to me that it says that comp time is time-off in exchange for overtime pay (the full 1 1/2, not just the 1/2 as I originally thought).

Since the employee in Option 2 got paid for the overtime, I fail to see where this is comp time.

But comp time is not permitted for private employers by the FLSA.
http://www.dol.gov/esa/regs/compliance/whd/whdfs23.pdf

It is only permitted for government employers by an exception in the FLSA, Section 7(k).
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_553/29CFR553.22.htm

IF comp time is allowed, THEN it must be accrued at 1.5 time. But this is a private employer and the FLSA does not grant the exception to private employers. I don't know how else to say it.

Agreed with Patty. There have been bills in Congress several times to alter the law to permit private sector comp time but these bills (thus far) have failed to become law.

The Part 553 regulations which have been quotes are titled Part 553 Application of the Fair Labor Standards Act to Employees of State and Local Governments.

Private employers may not give employees straight compensatory time (one hr. off for every OT hr. worked) instead of overtime. - However:
Private employers who wish to provide time off rather than pay overtime have 2 options. 1) they may adjust an employee's hrs. within a workweek so that the employee does not earn OT. (ie by allowing an employee who has worked four 10-hr. days to take the rest of the week off. 2) provide the employee an hr. & a half of time off for each OT hr. worked, as long as the time off is taken during the same period as the extra hrs. are worked.

That's how it is worded -employment law pamphlet. In your case since there is no OT (didn't work over 40 hrs. wk.), they wouldn't have to give ANY time off or pay ANY OT - *it says for each OT hr. worked* - they didn't work any OT in your case for the week. They wouldn't be able to work the schedule for the week in your example anyway apparently. (their example M-T 4 days total of 37 hrs. worked, Fri. 5 hrs worked - totals 42 hrs. - (2 hrs OT at 1.5 time = 3 hrs time off) Gets 3 hrs. off Fri - works 5 hrs Fri. instead of 8.)

Patty - does this make sense to you - you know much more about payroll than me. It seems to make sense & it was indicated they can do that by an employment/labor lawyer.

Betty, did you get this from a Minnesota booklet? If so, my educated guess would be that it would apply only to those Minnesota employers who were not subject to the FLSA. As you know, the states cannot enact legislation that provides less of a benefit to the employee (which the feds consider that overtime pay is) if the employer/employee is covered under the FLSA.

But comp time is not permitted for private employers by the FLSA.
http://www.dol.gov/esa/regs/compliance/whd/whdfs23.pdf

It is only permitted for government employers by an exception in the FLSA, Section 7(k).
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_553/29CFR553.22.htm

IF comp time is allowed, THEN it must be accrued at 1.5 time. But this is a private employer and the FLSA does not grant the exception to private employers. I don't know how else to say it.

I know that comp time is not permitted for private employers.

However, this isn't comp time.

Comp time would be if I gave an employee 1 1/2 hours of paid time off to be taken later, instead of paying the employee time and 1/2 for the overtime hour. The paycheck would look something like this:

40 hour work schedule, $10/hr Biweekly pay period

1st week 42 hrs: 40 hrs @$10= $400 gross and 3 hours accrued PTO
2cnd week 40 hrs: 40 hrs @$10= $400 gross
OR
2cnd week 37 hrs: 37 hrs @$10 and 3 hrs PTO @$10= $400 gross
Gross for period: $800

That is comptime. What I described in my above post for option 2 is not comp time. In option 2 the employee was paid OT for all OT hours worked. The employer, as posted manytimes on this board, is allowed to schedule employees to meet the needs of his business. One of those needs is the ability to control labor costs. If an employee gets paid overtime in one week, it is perfectly legal to cut his hours next week (non-paid time off?) so the payroll expense stays the same.

Agreed with Patty. There have been bills in Congress several times to alter the law to permit private sector comp time but these bills (thus far) have failed to become law.

The Part 553 regulations which have been quotes are titled Part 553 Application of the Fair Labor Standards Act to Employees of State and Local Governments.

DAW, I know that the comp time is only available to government employees. The part 553 regulations do describe what comp time is. That is way I referenced them.

I know that comp time is not permitted for private employers.

However, this isn't comp time.

Comp time would be if I gave an employee 1 1/2 hours of paid time off to be taken later, instead of paying the employee time and 1/2 for the overtime hour. The paycheck would look something like this:

40 hour work schedule, $10/hr Biweekly pay period

1st week 42 hrs: 40 hrs @$10= $400 gross and 3 hours accrued PTO
2cnd week 40 hrs: 40 hrs @$10= $400 gross
OR
2cnd week 37 hrs: 37 hrs @$10 and 3 hrs PTO @$10= $400 gross
Gross for period: $800

That is comptime. What I described in my above post for option 2 is not comp time. In option 2 the employee was paid OT for all OT hours worked. The employer, as posted manytimes on this board, is allowed to schedule employees to meet the needs of his business. One of those needs is the ability to control labor costs. If an employee gets paid overtime in one week, it is perfectly legal to cut his hours next week (non-paid time off?) so the payroll expense stays the same.

I don't think you're understanding it correctly. Your option 2 actually is considered comp time. The only way it WOULDN'T be considered comp time is if the employee took off work early in the SAME WEEK as when the overtime occurred. As soon as the business makes a person take off the next week to make up for OT in the first week, it is considered comp time. It may come out the same, but it is still illegal. Private employers CANNOT do it. If they don't want to pay OT, they have to make sure the employee does not go over 40 hours in a work week.

Example:

Mary works five 8 hour days, work week is Sunday through Saturday (Mary actually works M-Fr). By Thursday, Mary has already worked 4 days and put in 37 hours (her boss made her work late a few nights...;) ). In order to prevent her from getting any OT, the employer makes mary leave early on Friday so she only actually works 40 hours. This is perfectly legal because everything happened in the same week.

ILLEGAL-- Instead of Mary getting off early on Friday, she quits at normal quitting time and now has 5 hours OT. If the boss were to make Mary take off 7 and a half hours the following week, that is illegal. It is now considered comp time.

Does that make sense?

ETA: The point is, the employer must PAY overtime when it occurs in a work week. If the employer is giving comp time, then the OT isn't getting paid out.

Not really.

Comp time as defined by 29 USC 207(o) and 29 CFR 553.22 is the exchange of overtime pay for paid time off at the rate of 1:1.5.

If Mary got paid the OT premium for those 5 OT hours, then her schedule next week could be reduced by 7 1/2 hours, 0 hours, or all her hours. No comp tome involved, therefore legal. The employee was paid OT when it was earned. This is the situation I was describing in "option 2".

If Mary did not get paid the OT for her 5 hours of overtime and she was given 7.5 hours of paid leave, then that would be comp time and therefore illegal.

If Mary did not get paid the OT for the 5 hours of overtime and her next weeks schedule was cut by 7.5 hours or more/less, or she was given 7.5 hours of unpaid leave; then it's not comp time, but still illegal because she didn't get paid OT for her overtime hours worked.

As far as I know, giving ee's PTO even at the 1.5 rate is still considered comp time because it is not being paid to them during the work weeks in which the OT happened. Patty? DAW?

ETA: Okay, I see what you're saying. You're saying if they work OT, then you can pay out PTO they already have at 1.5 rate for their OT. That makes sense because you can charge a PTO account whenever. Sorry about the mixup. I thought you were saying you can bank the OT into their PTO account for later usage. Sorry!

That's not what I'm saying at all. I'm not charging a PTO bank when employees work overtime.

I'm saying I can set next weeks schedule as whatever I want. It's completely unconnected to whatever OT is worked in the current week.

If the OT is worked in the current week, I must pay that overtime. I can not charge their PTO bank since it is hours worked. I can cut their hours next week if I want. I can not offer paid time off in-lieu of overtime. I can not credit their PTO bank instead of paying overtime.

They are getting the time off in the same week that they worked the OT in the example I gave from the pamphlet.

***Patty, to answer your question, it was in a 4 page pamphlet on general US federal labor law (in regard to min. wage & overtime) dated 2007. The end of the pamphlet indicated some states may have their own rules/laws that differ from fed. & to ck. with your state's DOL. It was by two attorneys from an employment and labor law group - it didn't say where they were from. How I actually got it was from a friend - her daughter-in-law works for a large co. in Mo. in HR Dept. - her daughter-in-law made a copy for my friend to give to me because she knew I am interested in employment/labor law. I really don't know if it is something she was given at work or something she came across & took to work since she works in HR.***

P.S. Gee, I sparked a "debate." :-)

As far as I know, giving ee's PTO even at the 1.5 rate is still considered comp time because it is not being paid to them during the work weeks in which the OT happened. Patty? DAW?

Under federal rules, PTO is legally unrelated to pay based on time worked. Under federal rules, comp time is legally something that happens to governmental employees only, and talking about comp time in regards to private sector employer overtime is perhaps deliberately confusing. If FLSA is involved, then overtime is earned and paid during the weekweek. Take away FLSA for certain small employers, then state laws could in theory impose different rules. Past that much of the discussion did not make much sense, to me anyhow, and seemed to have little or nothing to do with the question originally raised by the OP. It seemed (to me anyhow) that Patty said everything that needed to be said.

If someone can make a real argument that under FLSA that comp time that crosses workweeks is somehow legal for private sector employees, that would be interesting, but I am afraid that much of the discussion seemed (to me anyhow) to be just different words saying mostly the same thing.

That's not what I'm saying at all. I'm not charging a PTO bank when employees work overtime.

I figured that's what you were doing when you said this:

1st week 42 hrs: 40 hrs @$10= $400 gross and 3 hours accrued PTO

But I was mistaken. I didn't go all the way back to what you were saying. I thought you were saying (in the second quote) that wasn't comp time. This is where my confusion was.

Again, SORRY!

I give up. Call and talk to an investigator with the federal DOL.