I was paid regular time for 300+ hours when I should have been paid overtime. The owner wants to repay me in increments the half time I'm owed since the overtime pay comes to around $6,000. Is there anyway that I can have him pay me in increments that match up to the weeks I was due the OT pay so the taxes held out would not be as much as if it were a larger sum? I have no problem having him pay me in a bunch of checks versus several larger sums. Is it my call to make or do I accept it however he pays it?

Thanks in advance for any help.

Ken Kruschwitz

It is the employer's option. However, the employer could also choose to pay it in a lump sum and use the supplemental wage withholding rate. As the payroll person, I sure wouldn't want to have to keep track of this, though.

To make things even more interesting, the payroll is done by an outside company and they were told by the owner to not pay overtime for hours over 40. Wouldn't the payroll company be liable for something for not paying an employee who punches the clock and therefore wouldn't be exempt?

Ken

The payroll company's liability is limited in that they process what is sent in by the company. If the company doesnt feed them correct info, they cant process correct info.

Punching a time clock does not automatically cause an employee to be non-exempt.
The law does allow an employer to keep track of hours for exempt employees without losing exempt status.

I understand the exception from overtime for firefighters and police officers hired by public agencies and employees of nursing home and hospitals. I also understand that employees can be asked to punch a clock to keep track of hours. Can the employer tell the payroll company not to pay overtime when the payroll company knows by virtue of the real time collection of clock punches transmitted to them that the employee is paid according to the time clock? The payroll company knows by nature of the business that the employees are not exempt employees, ie that they don't meet the guidelines for exemption for executive, administrative, professional, computer & outside sales employees under the Fair Labor Standards Act. If the payroll company knows that the employee doesn't meet the exemption criteria how can they not calculate overtime based on what they are told by the employer? It seems it would be the same thing as someone telling an informed person to do something illegal when the person knows it is illegal. I don't understand how that would hold up to scrutiny.

I guess that is why I'm not a lawyer...:)

How would the payroll company know all of these things you think that they know?

I have done payroll for many, many years, with a number of different payroll companies and a few completely in house systems (no payroll companies). In all cases, the payroll company never knew anything that we (the employer) did not tell them. If I tell them that Bob is Non-Exempt and Jill is Exempt, that is all they know. The payroll company does not come in and do the duties test. They do not know the job titles (just as well since job titles are legally meaningless). The payroll company just knows that they have records for Bob and Jill and that all information entered into those records was entered by the employer. The payroll company just processes payroll based on what they were told by the employer. Garbage in. Garbage out.

Just out of curiosity, have you ever once done a payroll?

First of all, police and firefighters do get overtime. They are not exempted. Their overtime is calculated on a 28 day period rather than a 7 day period. Once they exceed certain limits, within that 28 day period, they do get OT.

Second, the payroll company processes the hours given. They arent questioning why Joe gets overtime and Sam doesnt. They know the nature of the business in general, but it is not their job to audit everything that comes thru.

That is the responsibility of whoever oversees payroll within the company in most cases.

Yes, DAW I have done payroll before although never using a company that collected the hours electronically where I didn't have to send them the hours the employees worked.

I'm sorry I didn't clarify about the police, firefighters, etc. My situation is based on the 7 day pay period and I didn't make that clear when referencing them.

Doesn't change the answer to your original question, however.