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No overtime pay? West Virginia West Virginia

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  • No overtime pay? West Virginia West Virginia

    I work in a childcare center in West Virginia. We get paid every 2 weeks. On my last pay, I had 83 hours (3 hours of overtime.) I assumed we got paid time and a half for overtime, but couldn't account for the extra money. When I asked my employer about the overtime pay, she informed me that she doesn't pay overtime. She stated it is our "choice" if we want to work overtime or not, although no one asked me if I wanted to stay over or not. Am I entitled to this overtime pay or not? Is she legally responsible for paying for overtime? She told me that she doesn't have to pay overtime because she has less than 15 employees. Please clarify this for me. Thank you so much!

  • #2
    Your employer ate way too many cucu flakes for breakfast. Overtime is to be paid for anytime worked over 40/week. Overtime pay for hours worked over 40 in a work week must be paid whether you were directed to work the hours or not. Go to the web site with the following pointer and print it from the printer friendly version and give her a copy of it. If she continues to refuse to pay you as federal law demands put in a wage claim at your DOL. There may be additional state laws that are more favorable than the FLSA act but I doubt it for your state.

    Fact Sheet #23: Overtime Pay Requirements of the FLSA
    Printer Friendly Page

    This fact sheet provides general information concerning the application of the overtime pay provisions of the FLSA.

    An employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work.

    Unless specifically exempted, employees covered by the Act must receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay. There is no limit in the Act on the number of hours employees aged 16 and older may work in any workweek. The Act does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, as such. (Just to clarify. What isn't clearly written here is that this means you don't get over time for Sat, Sun, holidays, or reg days of rest IF it does NOT cause you to go over 40 hours in a work week)

    The Act applies on a workweek basis. An employee's workweek is a fixed and regularly recurring period of 168 hours -- seven consecutive 24-hour periods. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. Averaging of hours over two or more weeks is not permitted. Normally, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned.

    The regular rate of pay cannot be less than the minimum wage. The regular rate includes all remuneration for employment except certain payments excluded by the Act itself. Payments which are not part of the regular rate include pay for expenses incurred on the employer's behalf, premium payments for overtime work or the true premiums paid for work on Saturdays, Sundays, and holidays, discretionary bonuses, gifts and payments in the nature of gifts on special occasions, and payments for occasional periods when no work is performed due to vacation, holidays, or illness.

    Earnings may be determined on a piece-rate, salary, commission, or some other basis, but in all such cases the overtime pay due must be computed on the basis of the average hourly rate derived from such earnings. This is calculated by dividing the total pay for employment (except for the statutory exclusions noted above) in any workweek by the total number of hours actually worked.

    Where an employee in a single workweek works at two or more different types of work for which different straight-time rates have been established, the regular rate for that week is the weighted average of such rates. That is, the earnings from all such rates are added together and this total is then divided by the total number of hours worked at all jobs. In addition, section 7(g)(2) of the FLSA allows, under specified conditions, the computation of overtime pay based on one and one-half times the hourly rate in effect when the overtime work is performed. The requirements for computing overtime pay pursuant to section 7(g)(2) are prescribed in 29 CFR 778.415 through 778.421.

    Where non-cash payments are made to employees in the form of goods or facilities, the reasonable cost to the employer or fair value of such goods or facilities must be included in the regular rate.

    Back to Top
    Typical Problems
    Fixed Sum for Varying Amounts of Overtime: A lump sum paid for work performed during overtime hours without regard to the number of overtime hours worked does not qualify as an overtime premium even though the amount of money paid is equal to or greater than the sum owed on a per-hour basis. For example, no part of a flat sum of $180 to employees who work overtime on Sunday will qualify as an overtime premium, even though the employees' straight-time rate is $12.00 an hour and the employees always work less than 10 hours on Sunday. Similarly, where an agreement provides for 6 hours pay at $13.00 an hour regardless of the time actually spent for work on a job performed during overtime hours, the entire $78.00 must be included in determining the employees' regular rate.

    Salary for Workweek Exceeding 40 Hours: A fixed salary for a regular workweek longer than 40 hours does not discharge FLSA statutory obligations. For example, an employee may be hired to work a 45 hour workweek for a weekly salary of $405. In this instance the regular rate is obtained by dividing the $405 straight-time salary by 45 hours, resulting in a regular rate of $9.00. The employee is then due additional overtime computed by multiplying the 5 overtime hours by one-half the regular rate of pay ($4.50 x 5 = $22.50).

    Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee's right to compensation for compensable overtime hours that are worked.

    Where to Obtain Additional Information
    This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations. Copies of Wage and Hour publications may be obtained by contacting the nearest office of the Wage and Hour Division listed in most telephone directories under U. S. Government, Department of Labor or by calling our toll free number 1-866-4USWAGE.


    • #3
      The number of employees is irrelevant. However, whether the employer is subject to the FLSA or not might be. If the business grosses of $500K annually OR transacts any interstate commerce, the employer is subject. If not, then the issue becomes whether the business is subject under a comparable state coverage requirement. Unfortunately, the WV DOL website either is terrible or I can't get to what I need from the computer where I currently am.

      It's pretty difficult for an employer to not be subject to the FLSA, but it isn't impossible.
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


      • #4
        Thank you for the clairification ParryMD. It could easily be that this emloyer does not fit the $500K depending on how many kids they take in. I appreciate the help and yes I overlooked that very basic fact. Thank You.


        • #5
          W. Va. Code ยง 21-5C-3(a), which states:
          On and after the first day of July, one thousand nine hundred eighty, no employer shall employ any of his employees for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate of not less than one and one-half times the regular rate at which he is employed.
          Employment excluded from overtime laws: Employees that are subject to FLSA
          “Employer” includes the state of West Virginia, its agencies, departments and all its political subdivisions, any individual, partnership, association, public or private corporation, or any person or group of persons acting directly or indirectly in the interest of any employer in relation to an employee; and who employs during any calender week six or more employees as herein defined in any one separate, distinct and permanent location or business establishment: Provided, That the term “employer” shall not include any individual, partnership, association, corporation, person or group of persons or similar unit if eighty percent of the persons employed by him are subject to any federal act relating to minimum wage, maximum hours and overtime compensation.
          W Va Code 21-5c-1(e)
          Last edited by Betty3; 08-01-2007, 06:57 PM. Reason: add info
          Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

          Live in peace with animals. Animals bring love to our hearts and warmth to our souls.


          • #6
            Day care - Child care center are automatically covered enterprise as noted below... the $500k is not applicable

            Daycare centers and preschools provide custodial, educational, or developmental services to preschool age children to prepare them to enter elementary school grades. This includes nursery schools, kindergartens, head start programs, and any similar facility primarily engaged in the care and protection of preschool age children. Individuals who care for children in their home are not considered daycare centers unless they have employees to assist them with the care of the children.

            The 1972 Amendments to the FLSA specifically extended FLSA coverage to preschools as covered "enterprises," regardless of whether public or private or operated for profit or not for profit, and without regard to the annual dollar volume of the business. As a result, all such enterprises are required to comply with applicable provisions of the FLSA.

            See this for a complete fact sheet...

            "A veteran - whether active duty, retired, national guard, or reserve - is someone who, at one point in his or her life, wrote a blank check made payable to The 'United States of America', for an amount of 'up to and including my life.'" (Author unknown)


            • #7
              Thanks both Army and Betty. Seems like this employer is therefore in violation of both.

              So, OP, your recourse is to file a claim for unpaid overtime with the state Dept. of Labor.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


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