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Aug02

Shifts that start in one day and end in another

My parents have a caregiver who works 7 pm to 7 am, 6 nights a week, starting on Friday night and ending on Thursday morning. I have been advised that her overtime is supposed to be calculated by the calendar day –eg: Friday 7 pm to 12 am = 5 hours. No overtime. Saturday 12:01 am to 7 a.m.= 7 hours, then Saturday 7pm to 12 am = 5 hours which totals 12 hours for Saturday, so she is entitled to 3 hours of overtime for “Saturday”. This would continue for Sunday, Monday, Tuesday, but on Wednesday working 7-12 = 5 hours and then (Thursday) 12:01 am to 7 am — it’s 7 hours with no additional hours later in the day — so again (like Monday), no overtime. Is that correct? I read somewhere else that you can’t split days like that to avoid overtime. I just want to do the correct, legal thing.

The U.S. Department of Labor administers and enforces the Fair Labor Standards Act (FLSA) which establishes minimum wage, overtime pay, recordkeeping, and child labor standards. Most American workers are covered by the FLSA. There are two ways in which an employee can be covered by the law: enterprise coverage and individual coverage. Enterprise coverage refers to businesses or organizations employing at least two employees, having an annual dollar volume of sales or business done of at least $500,000, and hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies. Absent enterprise coverage, employees are protected by the FLSA if their work regularly involves them in interstate commerce.

Persons employed in domestic service in households are covered by the FLSA. Nurses, certified nurse aides, home health care aides, and other individuals providing home health care services fall within the term domestic service employment. However, an employee who performs companionship services in the private home of the person by whom he/she is employed is exempt from the FLSA’s minimum wage and overtime requirements if all criteria of the exemption are met. Criteria for exempt status have been discussed in previous posts. Please feel free to review them.

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. The act applies on a workweek basis. An employee’s workweek is a fixed and regularly recurring period of 168 hours or seven consecutive 24-hour periods. The workweek doesn’t have to coincide with the calendar week and may begin on any day and at any hour of the day. Thus, if the workweek of the employee in question is Friday to Thursday, the total hours worked in the workweek must be totaled. Any hours over 40 must be paid at the overtime rate under federal law.

Keep in mind that some states have adopted daily overtime requirements. For example, under California law non-exempt employees are entitled to overtime pay if they work more than eight hours in a workday. Employers must establish clear workdays in order to calculate overtime pay accurately. Under California law, a workday is defined as any consecutive 24-hour period starting at the same time each calendar day. The workday may begin at any time of day. If an employer does not establish a workday starting time, the workday is considered to last from 12:01 a.m. to midnight.

It’s important to know applicable state law regarding overtime pay and calculation. Please feel free to re-post your question with the state listed and we can research applicable legislation for you.

This entry was posted on Saturday, August 2nd, 2014 at 8:39 pm and is filed under
Human Resources Management, Labor Laws.
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