I work for a company that follows Vermont law for OT. In order to be paid OT rate you must actually work 40 hours. At the same time my employer pays OT for some OT and not for others. IE I can work four days in row for 32 hours and take vacation day for the fifth day. If I am on call and receive an "emergency call" I get paid OT. If I work some additional hours these would be at regular time. When it comes to defining OT pay can an employer decide what hours they will pay for OT and what hours they will not? Thanks for any and all input.

So long as the company complies with the law...

Let's say your work week is Monday through Sunday.

You work eight hours each day, Monday through Thursday and take Friday off with pay as vacation.

You are on call on Saturday (pay for the on call time may be required IF your activities are restricted, but let us assume they are not). You get a call and respond. The employer pays you four hours at time and a half for the four hours it took you to take care of whatever problem it was. The employer is not required to do that. That time could be at straight time since you had only worked 32 hours during the week. The eight hours off on Friday does not count towards work time.

Now, on Sunday, you get called in and have to work an entire eight hour day.

The employer need only pay you straight time since your total hours for the week are 44 hours AND you were paid time and a half for four of those (the on call response on Saturday).

That is all under federal law. I doubt that Vermont's albeit liberal laws provide for more than that.

In order to be paid OT rate you must actually work 40 hours.

That is not unique to Vermont. No state requires that paid but unworked time be included in overtime calculations; nor does Federal law. An employer may choose to include vacation, sick, personal, holiday or other paid leave in overtime calculations and some do. But it is not required by law anywhere in the US.

When you say "I work for a company that follows Vermont law for OT. " do you mean that you work in Vermont?

I do work in Vermont. I guess the main issue I have is that we do get OT pay when on "Emergency call". What defines emergency from other calls? Last week I was supposed to work a half day (4 hours) with the remaining 4 hours being vacation. Due to lots of issues that day, I ended up working 6 hours and taking 2 hours for vacation. Then while on "vacation hours" I had about 15 calls all work related and I put in for another hour. This was classified as regular pay. So who defines emergency?

. So who defines emergency?

No one. Federal law (FLSA) could not care less about "emergency". What federal law does care about is paying Non-Exempt employees based on actual hours worked. Paid time off is never hours worked under law. On call pay may or may not be hours worked under law, but there is a high legal standard, including that the employer's imposed restrictions "severely restrict" the employee's actions.

All hours actually worked must be looked at for purposes of overtime calcuations and the FLSA rules determine whether or not an hour is legally considered to be "worked".