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Extra hours worked not documented or paid OT Florida

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  • Extra hours worked not documented or paid OT Florida

    This company has "employees" paid on a W2 form working from home doing phone work. Employees are required to have a set schedule and must be available to make and receive calls during those hours or lose their jobs. Understandably so as it is a call center environment even though done from home and requires consistent and dependable attendance.

    Maximum hours employees are allowed to schedule "on paper" is 29 hours. The company does not want to pay benfits or O.T. However, employees are told that if they want to make more money they can be "available" additional hours (not scheduled). Thus the employee can be "on call" to take overflow calls and can work all they want but only get paid for the Per call amount paid. They do have a system that shows the total time the employee was on actual calls so that time tracking is available electronically. Being that this is still "time worked" does the Overtime law not still apply?

    My question is: because employees must get paid for any hours worked (except exempt employees ) would the time spent on calls outside the 29 hours not count towards the 40 hour work week each week?

  • #2
    Let's break this down into pieces. Federal law (FLSA) requires:
    - Tracking of all hours worked. And there are a whole set of regulations (29 CFR 785.xxx) on just what is and is not an hour worked.
    - On a workweek basis, the employee must be paid at (on average) the federal minimum wage of $7.25/hr.
    - For each workweek, overtime is legally defined as hours actually worked past 40 in the workweek. These hours must have a premium of 50% of more of regular rate of pay. Meaning if Bob works 50 hours, Bob must be paid at least 50 hours at $7.25.hr plus 10 hours @ 50% of $7.25.hr.
    - There are maybe 100 or so "exempt" exceptions to MW, OT or both in the FLSA law. These exceptions are specific to job duties or industry. Doing phone work from home would not seem to trigger any of the exceptions. Meaning the employees would be vanilla non-exempt rule wise.

    Unrelated to FLSA, there is a second federal law called ERISA which is directed at certain benefits, mostly retirement plan (including 401(k)) and medical. Under ERISA:
    - While employers are not required to offer any benefits, much less ERISA level benefits, if the employer chooses to offer ERISA level benefits, then the employer must have a formal written benefit plan. The employer must follow the provisions of that plan to the letter. The employer must give a short version of the plan (Summary Plan Document) to employees if/when requested.
    - The feds have no interest in non-ERISA benefits. States may or may not. FL however is not interested in much of anything labor law related.

    Those are the two federal rule sets effecting your issues. FL is not a big fan of state specific labor law and is mostly a "just like federal" state.

    "Maximum hours employees are allowed to schedule "on paper" is 29 hours. The company does not want to pay benefits or O.T."

    There is no "29 hour" rule in federal law. Overtime is 40 hours in the workweek, period. IF the employer has ERISA level benefit plans, then the "29 hour" limit MIGHT mean something. The only way to find out is to ask to see the benefit plan SPD.
    http://www.dol.gov/whd/regs/compliance/whdfs23.pdf

    My question is: because employees must get paid for any hours worked (except exempt employees ) would the time spent on calls outside the 29 hours not count towards the 40 hour work week each week?

    All hours actually worked are counted as hours worked. The "29 hour" rule is legally meaningless. Something your employer made up.
    http://www.dol.gov/whd/regs/compliance/whdfs22.pdf
    Last edited by DAW; 12-12-2010, 08:53 AM.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      29 hours set by Company

      Thank you for responding to my question.

      From reading your responses to others I thought that it was correct that "any hour worked" over 40 hours is to be considered O.T. and paid (except if exempt status), however, since this type of work is a "virtual call-center" type of work I was not sure if different laws applied to working from home.

      Regarding the 29 hours: the company just notifed all current "independent contractors" that they will now be "employees" but can only work 29 hours due to the company not having the budget to pay holidays, vacation pay or medical benefits or any beneftis for that matter. But as I mentioned previously they did say that a person could stay "on call" mode and take calls for the call center above and beyond their "scheduled" hours. However, no overtime is paid as that is not on the schedule. That was the bothersome part of it all.

      But thank you for responding as it confirms what I had read on your other posts regarding the O.T. rule for employees that are not exempt.

      Comment

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