Don’t Hand Me No (‘Day Rate’) Lines and Keep Your Hands Off my Overtime Pay?
It may not be as catchy as The Georgia Satellites’ song, that starts with “got a little change in my pocket going jingle lingle ling,” in their hit song, Keep your Hands to Yourself, but employees sometimes have to stand up to employers who continue to use illegal and unfair pay methods to avoid paying overtime. Otherwise, employees may not have any change left in their pocket that goes “jingle lingle ling.”
One of the more common schemes used by disreputable employers is to use the ‘day rate’ to try to avoid overtime. The problem is, the employers themselves either don’t understand how it works, or intentionally avoid paying overtime.
So, here is how it works. The employee get paid a flat rate per day, regardless of hours worked. But this does not – let’s repeat that – a day rate does NOT mean that employees are not entitled to overtime.
Day Rate Allowed . . .
The federal Fair Labor Standards Act (FLSA) does allow employers to pay non-exempt workers on a day rate basis. Under this plan, you as an employee will receive a fixed amount per day for the work you perform, regardless of the number of hours worked in that day. This day rate represents a straight line compensation for all work done in the workweek, both those hours worked up to the regular 40 hours and those worked over 40 hours representing overtime.
But Overtime Required
Day rates, however, cannot include or have built in any overtime premium pay, no matter how the day rate sum was set. Whenever you as an employee work more than 40 hours in a workweek, you must receive FLSA overtime premium pay in addition to your total daily rate for the workweek. In order to determine the overtime due we must first determine what your regular hourly pay rate would be under the FLSA.
Calculations Based on Regular Rate
The regular rate is determined by totaling all the sums received at such day rates or job rates in the workweek and dividing by the total hours actually worked – and cannot every be below the FLSA minimum wage. After computing the regular rate you are now entitled to extra half time pay at his rate for all the hours worked in excess of 40 in the workweek.
Here are Some Examples
If that was not clear let’s use an example. Suppose, J.D. Smith, a construction worker is paid a daily rate of $1,100 and works a total of 50 hours that workweek. What additional FLSA overtime pay for these ten overtime hours worked, despite how his day rate was established, is J.D. entitled to?
Step 1: Calculating the Regular Rate:
($1,100 Day rate) / (50 total hours worked) = $22 Per hour Regular Rate
Step 2: Calculating Overtime Premium Rate:
($22 Per hour Regular Rate x 50%) = $11 Per hour Over time premium Rate
Step 3: Calculating Overtime Premium Due:
($11 Overtime Rate per hour) x (10 overtime hours) = $110 Overtime Premium Due
Step 4: Total Pay for Workweek Due
($1,100 Day rate + $110 Overtime Premium) = $1,210 Total amount due
Can’t Force You to Sign Away Rights
They can’t slip you a document to waiver you federally protected overtime rights. The overtime requirement may not be waived by agreement between you the employee and your employer. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time is illegal.
If your employer has its hands on your paycheck, call VLF. Our attorneys are not going to throw out lines, and we will fight for anything you may be owed on your paycheck. Call or email us. We are here to help.