View Full Version : overtime when paid two different rates Colorado
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cher1229 03-03-2009, 04:45 PM I work 24 hour shifts in an assisted living facility. My first 8 hours are paid at $10.00 hr (assistant rate), the next 4 hours at $7.28 hr (caregiver rate), four hours are deducted as "sleep time" and the remaining 8 hours are paid at $10.92 hr (caregiver time and a half). Is this correct? The accountant has mentioned that she thinks the overtime should be paid based on the higher hourly rate. Help? Thanks so much! Cherie Pattymd 03-03-2009, 05:56 PM Are you working as a caregiver for the 8 overtime hours? If so, there is an exception to the "weighted average" calculation for overtime. http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_778/29CFR778.419.htm But even if not, the accountant is wrong. If the exception above does not apply, then the "weighted average" rate must be used. There is no regulation tating that the higher hourly rate must be used for overtime, even if the overtime work being done is as an assistant rate at the assistant rate. http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_778/29CFR778.115.htm What should be looked at is how many hours are being worked at each job's straight-time rate and go from there. DAW 03-03-2009, 06:00 PM Overtime is normally based on the workweek, although there is a possible exception for your industry. Your question looks at only one day, and it is not actually possible to determine the answer to your question without looking at the entire workweek (or 14-day period is the option rule for your industry is used). I can say that using the highest paid rate as the "regular rate of pay" for overtime purposes would insure that no rules have been violated, but this is not an actual legal requirement. The more general rule is that the average rate of pay for the workweek is used. http://www.dol.gov/esa/whd/regs/compliance/whdfs23.pdf http://www.dol.gov/esa/whd/regs/compliance/whdfs33.pdf Pattymd 03-03-2009, 06:14 PM I do know that CO law does require overtime pay for over 12 hours in a workday or over 12 consecutive hours regardless of workday definition. I would also note that this document states that, under certain conditions, up to 8 hours can be considered "sleeping time" for duty hours of less than 24 consecutive hours (as does federal law). http://www.coworkforce.com/lab/wageorderfactsheet.pdf |
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