DeterminedOne
08-13-2008, 12:07 PM
My former employer, an engineering construction consulting firm, told me for two years that my positions as, first, Engineering Office Tech II (Admin Assistant to a California Department of Transportation/CALTRANS project engineer), then as Senior Engineering Tech II (field inspector on a highway construction project) were Exempt positions and I would only be paid straight time for overtime worked. During those two assignments, I worked approximately 220 hours of overtime, all paid at straight time wages.
On the third assignment with the company (another inspector position), my new project manager told me that I was eligible for overtime pay. However, instead of the $50 rate I earned hourly, he used the California Division of Industrial Relations' (DIR) Prevailing Wage basic rate of $36 as the basis for calculating my time-and-a-half overtime. The $1.62 difference between that and my own hourly rate was determined as my overtime "premium pay". Since that was the only position for which I was paid any overtime, the total overtime pay for 2 years was $34.
Early this year, I appealed to the California DIR's Division of Labor Standards Enforcement. They confirmed that in all three positions with the company I was a Non-Exempt employee and, therefore, eligible for time-and-a-half overtime pay. They agreed to investigate the second assignment, which was on a non-CALTRANS government-funded project, and they sent my complaints about the other two projects to CALTRANS' Labor Compliance Unit.
I have now received responses from both DIR and CALTRANS. Regarding the inspector positions, for which there is a Prevailing Wage determination, each agency supported the company's interpretation that "regular rate" means the basic rate in that determination. And, therefore, that basic rate is to be used for calculating time-and-a-half, not "my" negotiated hourly rate. The DIR said "my" rate exceeded the basic rate plus time-and-a-half, so I had no recovery on that project, and CALTRANS said they found a slight discrepancy which resulted in a $3.90 settlement in my favor.
In addition, CALTRANS declined to follow up with the Admin Assistant position, claiming that there was no Prevailing Wage determination for them to use as a guideline.
Prior to my writing to the DIR, I checked with business owners, managers and superintendents in construction and other fields to see what figure they used to calculate overtime. To a person, with or without unionized staff, their interpretation of "regular rate" was the employee's own hourly rate.
A friend just sent me this LaborLawTalk thread " Which employers are subject to overtime requirements? California"which included this excerpts:
49.1.2 Items of Compensation Included in Calculating Regular Rate of Pay. In not defining the term “regular rate of pay”, the Industrial Welfare Commission has manifested its intent to adopt the definition of “regular rate of pay” set out in the Fair Labor Standards Act (“FLSA”) 29 U SC § 2 07(e):
“...the ‘regular rate’ at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee...” (29 USC § 207(e)).
49.2 Methods Used in Computing Regular Rate of Pay:
1. Compute the regular rate by dividing the total earnings for the week, including earnings during overtime hours, by the total hours worked during the week, including the overtime hours. For each overtime hour worked, the employee is entitled to an additional one-half the regular rate for hours requiring time and one-half and to an additional full rate for hours requiring double time. This is the most commonly used method of calculation."
As I read these regulations, they seem to support my hourly rate as the determining figure for overtime calculations. Does anyone here have experience with this other interpretation and is it defensible in court?
Thank you.
On the third assignment with the company (another inspector position), my new project manager told me that I was eligible for overtime pay. However, instead of the $50 rate I earned hourly, he used the California Division of Industrial Relations' (DIR) Prevailing Wage basic rate of $36 as the basis for calculating my time-and-a-half overtime. The $1.62 difference between that and my own hourly rate was determined as my overtime "premium pay". Since that was the only position for which I was paid any overtime, the total overtime pay for 2 years was $34.
Early this year, I appealed to the California DIR's Division of Labor Standards Enforcement. They confirmed that in all three positions with the company I was a Non-Exempt employee and, therefore, eligible for time-and-a-half overtime pay. They agreed to investigate the second assignment, which was on a non-CALTRANS government-funded project, and they sent my complaints about the other two projects to CALTRANS' Labor Compliance Unit.
I have now received responses from both DIR and CALTRANS. Regarding the inspector positions, for which there is a Prevailing Wage determination, each agency supported the company's interpretation that "regular rate" means the basic rate in that determination. And, therefore, that basic rate is to be used for calculating time-and-a-half, not "my" negotiated hourly rate. The DIR said "my" rate exceeded the basic rate plus time-and-a-half, so I had no recovery on that project, and CALTRANS said they found a slight discrepancy which resulted in a $3.90 settlement in my favor.
In addition, CALTRANS declined to follow up with the Admin Assistant position, claiming that there was no Prevailing Wage determination for them to use as a guideline.
Prior to my writing to the DIR, I checked with business owners, managers and superintendents in construction and other fields to see what figure they used to calculate overtime. To a person, with or without unionized staff, their interpretation of "regular rate" was the employee's own hourly rate.
A friend just sent me this LaborLawTalk thread " Which employers are subject to overtime requirements? California"which included this excerpts:
49.1.2 Items of Compensation Included in Calculating Regular Rate of Pay. In not defining the term “regular rate of pay”, the Industrial Welfare Commission has manifested its intent to adopt the definition of “regular rate of pay” set out in the Fair Labor Standards Act (“FLSA”) 29 U SC § 2 07(e):
“...the ‘regular rate’ at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee...” (29 USC § 207(e)).
49.2 Methods Used in Computing Regular Rate of Pay:
1. Compute the regular rate by dividing the total earnings for the week, including earnings during overtime hours, by the total hours worked during the week, including the overtime hours. For each overtime hour worked, the employee is entitled to an additional one-half the regular rate for hours requiring time and one-half and to an additional full rate for hours requiring double time. This is the most commonly used method of calculation."
As I read these regulations, they seem to support my hourly rate as the determining figure for overtime calculations. Does anyone here have experience with this other interpretation and is it defensible in court?
Thank you.
