Volume 5, Issue 1
September, 2011
SCOPE FOR PARAS, CUSTODIAL, PLANT OPS., BUS DRIVERS AND OTHER EDU. EMPLOYEES
What is overtime?
Overtime is the amount of time someone works beyond their normal working hours. Overtime requirements are developed and controlled by federal law under the Fair Labor Standards Act (FLSA).
According to the FSLA, overtime is time actually worked over 40 (forty) hours in a week. Although an employer may define the word “overtime” using different hours, the FSLA standard supercedes any other definition of overtime when determining the FSLA employee rights.
Therefore, under federal law, a violation of the overtime law only occurs unless and until a non-exempt employee has worked MORE THAN 40 hours in a work week.
Who is considered a non-exempt employee? In a school district, most support employees such as: clerks, custodians and paraprofessionals are covered by the FLSA and are entitled to receive overtime compensation.
Teachers, counselors and administrators are exempt from receiving overtime pay because they are certified professionals.
WORK TIME
All time spent by an employee performing activities which are job-related is potentially “work time”. This includes the employee’s regular “on the clock” work time, plus “off the clock” time spent performing job-related activities (which benefit the employer). Potential work is actual work if the employer “suffered or permitted” the employee to do it. An employer suffers or permits work if it knows the employee is doing the work (or could have found out by looking), and lets the employee do it.
With only a few exceptions, all time an employee is required to be at the premises of the employer IS work time. All regular shift time is work time. This includes “breaks” (if there are breaks), and “non-productive” time (for example, time spent by a receptionist reading a novel while waiting for the phone to ring). In addition, all time spent by an employee performing work-related activities that the employer suffers or permits is work time, whether on the premises or not and whether “required” or not. Work done “at home” or at a place other than the normal work site is work and the time MUST be counted. “Voluntary” work is work, and the time MUST be counted. “Unauthorized” or “unapproved” work is work and MUST be counted (provided that the employer knows or should know it is being done and permits the employee to do it). It is the privilege and responsibility of the employer to “control the work” of its employees. If an employer does not wish for an employee to perform work, it must prohibit the employee from doing so if it does not wish to include that work in time in the required FLSA pay computations (29 CFR §§785.11, 785.12, and 785.13.)
“OFF THE CLOCK” WORK
Many FLSA lawsuits have involved employers failing to include time spent by employees performing work activities outside of their normal shifts. Some employees, for example, may "come early" and start working before the official start time of their shift. Pre-shift work is considered work time. Some employees may similarly “stay late” after shifts performing work; this time must be considered work time, as well. Post-shift work time could also include time spent by an employee performing job-related activities “on the way home”, as for example a secretary who drops off the day’s mail at the post office or delivers some paperwork to a customer or supplier. Some employees take work home. That may well be work time. Similarly, if an employee is contacted at home by telephone for work related reasons, the time spent is work time.
MEAL PERIODS
Meal periods need not be counted as work time if they are at least 30 minutes long and the employee is relieved from active duties during the meal period. An employee who "works through lunch" is working and that time must be counted. An employee who "eats a sandwich at the desk," or is required to monitor a machine, is working through lunch. However, a meal period need not be counted as work time if the employee is merely expected to "remain available" during the meal period but is otherwise relieved of active work duties. So, for example, a meal period may be time NOT worked even if the employee is not permitted to leave the facility, or expected to remain in uniform.
