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Thread: Variable Rate Overtime Texas

  1. #1
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    Default Variable Rate Overtime Texas

    I am paid "variable rate overtime" at my job. They told me when i was hired that i was paid a salary of $525 a week, plus variable rate overtime. which i agreed to when i was hired. the last two weeks i only worked a total of 75 hours instead of required 80 hours, (40 hours a week) and they deducted my pay. so instead of paying me the $1050, for the two weeks, they only paid me $985. I know the overtime is legal, and it's kind of frustrating. but the fact that they deducted me, i don't think is legal, even though they try to tell me it is. i was wondering if anyone else has run into this problem at their job? and if they know where to find the laws where it's stated?

  2. #2
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    778.114 Fixed salary for fluctuating hours.
    (a) An employee employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid him pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many. Where there is a clear mutual understanding of the parties that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek, whatever their number, rather than for working 40 hours or some other fixed weekly work period, such a salary arrangement is permitted by the Act if the amount of the salary is sufficient to provide compensation to the employee at a rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours he works is greatest, and if he receives extra compensation, in addition to such salary, for all overtime hours worked at a rate not less than one-half his regular rate of pay. Since the salary in such a situation is intended to compensate the employee at straight time rates for whatever hours are worked in the workweek, the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the workweek into the amount of the salary to obtain the applicable hourly rate for the week. Payment for overtime hours at one-half such rate in addition to the salary satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate, under the salary arrangement. (b) The application of the principles above stated may be illustrated by the case of an employee whose hours of work do not customarily follow a regular schedule but vary from week to week, whose overtime work is never in excess of 50 hours in a workweek, and whose salary of $250 a week is paid with the understanding that it constitutes his compensation, except for overtime premiums, for whatever hours are worked in the workweek. If during the course of 4 weeks this employee works 40, 44, 50, and 48 hours, his regular hourly rate of pay in each of these weeks is approximately $6.25, $5.68, $5, and $5.21, respectively. Since the employee has already received straight-time compensation on a salary basis for all hours worked, only additional half-time pay is due. For the first week the employee is entitled to be paid $250; for the second week $261.36 ($250 plus 4 hours at $2.84, or 40 hours at $5.68 plus 4 hours at $8.52); for the third week $275 ($250 plus 10 hours at $2.50, or 40 hours at $5 plus 10 hours at $7.50); for the fourth week approximately $270.88 ($250 plus 8 hours at $2.61 or 40 hours at $5.21 plus 8 hours at $7.82).
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  3. #3
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    Agreed. It sounds like the employer is trying to have it both ways. The Fluctuating Workweek (FWW) method is an uncommon method of paying Non-Exempt employees on a salaried basis. It is a legal method if used correctly, but it is also a complicated method. It has both advantages and disadvantages, and the rules are clear that the employer cannot get the advantages (reduced paid overtime) without also getting the offsetting disadvantages (docking restrictions on the base salary).

    The employer may be trying to cut corners or they might just be confused. The problem with complicated methods is that they are often poorly understood.

    http://payroll-taxes.com/articles/sa...ernatives.html
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

  4. #4
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    now that i've talked to my employer about it, they're trying to tell me that i'm not actually paid "salary" and they only way to get the rate($525) per week they told me they wold pay is to work at least 40 hours. but then i feel like they should be paying me overtime. i've read a lot of the wages and overtime laws, and i can't really find anything saying this is a real way to pay people. does anyone know if there's someone in the department of labor i can report this to?

    also, i was told they got in trouble for this same thing in the pass, and were reported to the department of labor, who in turn came a did an invesigation. is that information avaliable to the public, and do you know where i could find it if it is?

  5. #5
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    Salaried is just a payment method. If the employer is now claiming that they are not using the salaried payment method and a "variable rate overtime", then the only remaining choice is the normal overtime method, which is 150% of "regular rate of pay" for all hours worked past 40 in the work week. I am skeptical that the employer will like that method any better. It sounds like they are just blowing smoke.
    http://www.dol.gov/esa/whd/regs/compliance/whdfs23.pdf

    You can talk to your state's DOL (called the TWC) and file a wage claim. You can file a wage claim with federal DOL. You can file a small claims court action. You can talk to a lawyer about filing a general court action. Those are your options.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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