Federal Employees Entitled to Overtime Pay

Shavitz Law Group

Private sector employees are not the only ones eligible for overtime pay. Many Federal employees are legally entitled to receive overtime pay too. The Fair Labor Standards Act (the “FLSA”) requires the federal government to pay most federal employees overtime when they work more than forty hours in a workweek.  There are, however, a number of differences that govern the application of overtime pay to federal employees.

One frequently encountered violation of the FLSA is that many federal employees who are employed at or above certain job grades are often automatically assumed to be exempt from overtime pay under the FLSA.  For example, many agencies automatically exempt employees who work at the GS-11 and GS-12 grade levels and above from the right to receive overtime pay.  This is not always true, however, and many federal employees are illegally denied overtime pay to which they are entitled. The FLSA requires employers, including the federal government and federal agencies, to examine the actual job duties performed by an employee in order to determine whether that individual is exempt under the law and properly denied the right to receive overtime pay.

Like private sector employees, non-exempt workers who are employed by the federal government and federal government agencies are entitled to receive overtime pay at one and one-half times their regular rate of pay when they work more than forty hours in a workweek. One difference is that for federal employees, paid leave hours are included as hours of work. In determining a federal employee’s regular rate of pay for purposes of calculating their overtime rate, all additional premium pay and non-discretionary or regular bonuses also are generally included as part of the hourly rate of pay.  In addition, for many federal employees, overtime is payable if the employee worked in excess of eight hours in a single day, not just in excess of forty hours in a week.

Different rules apply to employees who receive administratively uncontrollable overtime. Different overtime rules also apply to law enforcement and fire protection employees.  Some federal employees who are not entitled to overtime pay under the FLSA may be entitled to overtime pay under Title 5.

If you are a current or former employee of the United States Federal Government or one of its agencies and have questions about your overtime rights, contact the Shavitz Law Group.

Overtime Compensation for Employees Paid By Piece Rate

Shavitz Law Group

Employees who are paid on a piece-rate basis are entitled to overtime, although they may not be aware of their rights. “Piece rate” means that employees are paid a specific amount of money for each item they produce or task they perform.  For example, when cable technician is paid $15.00 for each utility line located, that employee is being paid on a piece rate basis.

 Notwithstanding the right of piece rate employees to overtime, some employers engage in various practices which deprive piece-rate employees of overtime compensation.  Such unlawful practices violate the Fair Labor Standards Act, the federal overtime and minimum wage law.

 Overtime compensation for piece rate employees is properly calculated by taking the total piece rate compensation earned by the employee in a given week, and then dividing it by the total number of hours the employee worked for that week.  The quotient of that division is the regular hourly rate of pay for the employee for that week.  To determine the employee’s overtime rate, you would then divide the regular rate of pay by 2.  The quotient of that division is the overtime rate.  The employee’s overtime compensation for that work week is the overtime rate multiplied by all hours in excess of 40 (overtime hours) that the employee worked that week.

While this calculation may sound complicated, an example demonstrates that the overtime for piece-rate employees is actually straight-forward:

A cable technician is paid on a piece rate basis.  In a work week, the technician earned $1.000.00 in piece rate compensation, and worked 50 hours.  Under this scenario, the overtime is calculated as follows:

$1,000.00 piece rate wages/50 hours = $20.00 regular rate

$20.00 regular rate/2 = $10.00 per hour overtime rate

$10.00 x 10 overtime hours = $100.00 overtime compensation.

Therefore, the cable technician is to be paid a total of $1,100.00 for the work he performed that week, which includes $1,000.00 in piece rate compensation and $100.00 in overtime compensation.

It is important to note that the overtime rate will fluctuate from week to week as the hours employees work and the piece rate compensation they earn each week fluctuate.  In some instances, an employee’s regular rate of pay may fall below the minimum wage.  In such a case, the employer is required to pay the employee the difference in compensation to ensure the employee is paid at or above the applicable minimum wage.  If the employer does not do this, the employee may have a claim for unpaid minimum wages.

Piece rate compensation plans are most common in ‘”blue collar” professions, such as cable technicians, air conditioning technicians/installers, plumbers, and electricians.

Police, Firefighter and Paramedics and Overtime Pay

Shavitz Law Group

Pursuant to the Fair Labor Standards Act (“FLSA”), police officers, firefighters and paramedics are entitled to overtime. Significantly, there are specific rules under the FLSA that apply to police officers, firefighters and paramedics.  Traditionally, employees covered by the FLSA are entitled to overtime pay for the hours they work over 40 in a workweek (7 days).  However, under the FLSA, public-sector (government) employers can establish special “7(k) work periods” which changes the traditional 40-hour “threshold” that a police officer, firefighter or paramedic must work before earning overtime pay.

Under 29 USC §207(k), a public-sector employer may choose a 7(k) work period, ranging from 7 days to 28 days.  Depending on the period chosen, the FLSA specifically prescribes a certain number of hours that police officers, firefighters or paramedics must work before they beginning earning overtime.  See 29 CFR 553.230.  For example, if a 7 day period is chosen, police officers must work at least 43 hours in 7 days before they can beginning earning overtime.  Firefighters and paramedics on the other hand would have to work at least 53 hours in 7 days before they begin earning overtime.  Separately, if a 28 day period is chosen, police officers would be required to work at least 171 hours within 28 days before they begin to earn overtime (i.e., roughly 6.11 hours per day) while firefighters and paramedics would be required to work at least 212 hours in 28 days (i.e., roughly 7.57 hours per day).

In addition to altering the work period which in turn triggers the overtime threshold, the FLSA also separately defines what can be considered “compensable time” for police officers, firefighters and paramedics.  “Compensable time” affects whether such employees have met the threshold at which they will start earning overtime pay. The regulations define “compensable time” for police officers, firefighters and paramedics to include:

all of the time during which an employee is on duty on the employer’s premises or at a prescribed workplace, as well as all other time during which the employee is suffered or permitted to work for the employer. Such time includes all pre-shift and post-shift activities which are an integral part of the employee’s principal activity or which are closely related to the performance of the principal activity, such as attending roll call, writing up and completing tickets or reports, and washing and re-racking fire hoses.

29 CFR 553.221.  For example, under this regulation, even time spent taking care of a K-9 unit at an officer’s home has been considered by some courts to be compensable time under this definition as the care is closely related to the performance of the officer’s principal activity.  See Hellmers v. Town of Vestal, 969 F. Supp. 837, 842 (N.D.N.Y. 1997) (“Time spent grooming, bathing, exercising, cleaning, and training the police dog is ‘required by the employer and is pursued necessarily and primarily for the benefit of’ the employer, and is thus ‘work’ under the FLSA.”).  Such may not be the case for a non-public sector employee.

If you are employed as a police officer, firefighter or paramedic, it is often difficult to determine whether you have been fully compensated for all hours worked. The overtime laws applicable to your profession just are not the same “40 hour threshold” as they are for other employees.  Thus, if you think you are not being fully compensated for all hours worked, you should consult with an attorney to review your particular situation.  The law prescribes certain time limits to assert your claim for unpaid wages. Therefore, do not hesitate to contact an attorney if you believe your overtime rights have been violated, so that you do not waive your right to collect the wages you already have earned and to which you are entitled.

Equal Pay for Equal Work

Shavitz Law Group

By Christine Duignan, Esq.  …..

The Equal Pay Act (the “EPA”), requires that employers pay both male and female employees the same wages for equal work in jobs which require equal skill, effort, and responsibility, and which are performed under similar working conditions.  An employee may prove his claim by showing employees of the opposite gender who worked in the same “establishment” for the same employer received better pay for the same work. Such an employee of the opposite gender is called the “comparator.”

An “establishment” is defined as a distinct physical place of business rather than an entire business which may include several separate places of business.  Thus, multiple locations may not constitute a single establishment.  Therefore, as a general rule, the comparator should work at the same physical location.  However, when employment decisions – including setting the rates of pay for male and female employees – are made by a central administrative unit, then the court will consider comparators from other locations.

Once an employee demonstrates that he or she is being paid less than employees of the opposite sex performing work which requires equal skill, effort, and responsibility, and under similar working conditions, the employer can only defeat the claim by proving one of four exceptions.  These exceptions are when unequal payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.

An employee who believes he or she has been paid unequally in violation of the EPA have two years to bring a lawsuit, or three years if the violation is alleged to be willful.

In addition, the EPA allows employees of the same gender to bring their claims together in a collective class action.  Therefore, if the records show that an employer pays its employees of one gender less wages and this decision is made by a central administrative unit, then the plaintiffs can seek – and may obtain – certification of a nationwide collective class.  If you know someone who may have been paid unequally at work, the Shavitz Law Group is always available to provide a no-obligation free consultation .