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Can an employer get away with paying HALF time for overtime pay?

Shelby, NC |

I work in a distribution warehouse and we get paid HALF time instead of time and a half for overtime. We work from 7am until whenever our final truck comes in to be loaded. Some days we work 8 hours, most of the time though, we put in 9-11 hours a day. We are guaranteed pay for 40 hours a week, regardless of if we work all 40 or not. We have changed our schedule a little to try and accomodate a normal 8 hour workday, since we get paid half of our normal wage after 8 hours. By that I mean, instead of coming to work at 7am and leaving around 5:30pm or 6pm, we will come in at 8am or 9am so we aren't working for $5/hr instead of $10/hr. We are hourly and not salary. Can our employer legally pay us like this for overtime? What options, if any, do we have? Who can I talk to?

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Attorney answers 1


It sounds as if your employer is using something called the "fluctuating work week" method of paying overtime. This is a method that is approved by the US Department of Labor , and set forth in Title 29, Section 778.114 of the Code of Federal Regulations. In order to be permissible, your hours must fluctuate from week to week (in other words, some weeks under 40, some weeks over 40); you must receive a fixed amount every week as straight time pay for all hours worked, even if you work fewer than 40 hours that week; and you must receive a contemporaneous payment equal to 1/2 of your applicable hourly rate for the week for all hours over 40.

This is a fairly technical area of overtime law, and it's hard to say, based on the information you have provided, whether or not your employer is complying with the law.



My situation is very similar and I would bet this person, like me NEVER work less than 40 hours (fluctuating) so how would that fit into this scenario?

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