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Jan 8, 2013

By John E. Thompson

Recent reports have described more than one scenario in which an employer violated the federal Fair Labor Standards Act because the employer failed to recognize that non-exempt employees’ hours worked over 40 were overtime ones.

The employees had performed their work in more than one position during the week, such that their time spent in any particular job did not exceed 40 hours. However, an employee’s hours worked in all of the positions in which he or she was engaged for the employer in the week totaled more than 40.

Handling OT for those working different jobs

For example, one set of circumstances involved non-exempt restaurant employees. Several of them typically worked around 25 hours as kitchen assistants for part of a week and about 20 hours as wait staff at other times in the week. Because no such employee worked more than 40 hours either as a kitchen assistant or as wait staff member when the positions were viewed separately, the employer did not consider any of their (25 hrs. + 20 hrs.) = 45 total hours worked to be FLSA overtime.

The threshold for FLSA overtime wages is not applied job-by-job. Instead, the FLSA requires that all of an employee’s hours worked for the employer in every job be combined to determine whether the employee has worked more than 40 hours in a single workweek.

If the employee has done so, then he or she is due the FLSA-required overtime pay for the hours worked over 40. Therefore, when one of the restaurant employees worked a total of 45 hours in both jobs in a workweek, he or she should have received the proper overtime compensation for (45 Total Hrs. – 40 ST Hrs.) = 5 overtime hours.

This state of affairs can arise in any industry or setting. FLSA overtime requirements are not limited to a by-the-position, by-the-department, or by-the-location measurement. Every employer should be certain that what might be a spreading “Everybody Does It” misconception has not taken root in the employer’s own organization.

This was originally published on Fisher & Phillips’ Wage and Hour Laws blog.