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Comp time in lieu of overtime - Massachusetts

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  • Comp time in lieu of overtime - Massachusetts

    In another thread, PattyMD posted:

    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.

    So an hourly employee (administrative assistant) cannot be told that overtime will not be permitted, and she is to keep track of her overtime and take time off instead? (8 hours off for 8 hours of overtime worked). Assuming the EE (my sister) has her time logs and the SOL hasn't run out, can she file a wage claim despite having taking comp time?

    Thank you in advance.
    Last edited by henbob6; 02-09-2011, 03:34 PM.

  • #2
    That is correct (assuming this is a private employer, not a government employer).

    And even in government, comp time must be earned at 1.5 hours for each hour worked.

    Absolutely, she can file a claim. If nothing else, she would be owed the half-time for every OT hour. The employer will likely argue that, from the total amount due (1.5 time) they can deduct the pay for time not worked ("comp time" taken). It would be a logical argument; I don't know what the state will say about that, though.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      One caveat:

      Suppose, as an example, she works 10 hours a day Monday, Tuesday, Wednesday and Thursday. It is 100% legal to tell her not to come in on Friday. The employer absolutely may adjust the employee's schedule so that she does not work over 40 hours. That is NOT considered "waiving overtime".

      But if she works the overtime, once we get into the next pay period, the overtime must be paid; time in lieu of the overtime pay will not be permitted.
      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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      • #4
        Originally posted by cbg View Post
        But if she works the overtime, once we get into the next pay period, the overtime must be paid; time in lieu of the overtime pay will not be permitted.
        To clarify for the OP (I know cbg knows this), it's actually next workweek, not the next pay period.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Of course I did know that. It's been a long day.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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          • #6


            Thank you very much for your replies. As often as I've read on this forum that employees must be paid for all hours worked and paid overtime past 40 hours, for some reason it didn't sink in until I read PattyMD's post! Thanks so much, as always.

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            • #7
              One other quick clarification for you, henbob, that I didn't really answer.

              The employer can certainly tell the employee that overtime is not permitted. They just can't refuse to PAY the overtime if it IS worked. Of course, they can always fire the employee for refusing to follow the legal work instruction of no overtime.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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              • #8
                Agreed with all above. Also, overtime and minimum wage are "we really mean it" rules as far as the government is concerned. Rules that the government is deadly serious about enforcing.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

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                • #9
                  File a Wage Complaint

                  All the other posters are correct, it is illegal in Mass for an employer to substitute comp time in lieu of paying for overtime hours worked. You should file an wage complaint with the AG's office. If you seek legal assistance in the matter (which can often move quicker than the AG's office) feel free to contact our office (see website below). We'd be happy to help and have helped other employees with more or less the exact same scenario. Good luck!
                  Last edited by cbg; 02-18-2011, 11:57 AM.

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                  • #10
                    It is illegal in all states, since the law it violates is Federal.

                    And soliciting clients is prohibited on these boards. If you wish to advertise, please contact the owners and have them send you the rates.
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                    Comment

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