Overtime hours present challenging dilemma

Q:
My supervisor has gotten in the
habit nearly every day of asking me to do errands or tasks around the lab after I have clocked out. I am hired at an hourly wage and entitled to overtime pay. These errands and jobs do not take much time, usually less than an hour, but they do add up each week. Others complain about this, too. My impression is that the supervisor has been told by upper management to hold down overtime, and this is her way of handling it. Is there anything we can do?

A:
With an increasing focus on the
so-called bottom line in an increasingly difficult healthcare economy, controlling overhead costs including labor is a priority. Because overtime is generally unpredictable and much more costly than straight time, there is often an emphasis on reducing this outlay, but it must be done in a legitimate fashion. Generally, that means hiring enough employees to do the job at straight time.

Do not underestimate the value of overtime. One expert suggests that a secretary, working as little as an extra hour a day, can accumulate nearly $100,000 in extra pay over the course of a few years. Regardless of the amount, because you qualify for overtime under the law, you are entitled to receive it.

Even with complex overtime rules, it is clear that an hourly employee (nonexempt under the federal rules) is entitled to time-and-a-half for all work in excess of 40 hours in a given work week. Keep in mind, this rule is for any given work week, not the employers designated pay period. Overtime worked in one week cannot be used to offset overtime worked in another shorter week, no matter what the employers pay schedule is. Remember that even if your employer pays you a flat salary for a year and you are considered a nonexempt employee, you are entitled to overtime at a rate determined by the hourly wage your annual salary represents. Employers cannot contract out of the overtime requirement for employees entitled under the law.

The technique of requiring off-the-clock work appears to be common, if litigation is any guide. A large national discount house was recently sued for exactly this same activity. Failing to pay for overtime exposes employers to potential fines and payback requirements. Such fines may be imposed not only by the federal government but by states when state law also covers the guarantee of payment for overtime.

Particularly in small labs where work is seasonally heavy, the temptation exists to offer compensatory time, which permits workers to bank their time-and-a-half and use it at a later date. This is not an option under federal law, no matter how well the arrangement may suit both management and employee.

Some employees are exempt from overtime and are paid on a straight salary basis. These are professional, executive and supervisory personnel who make a certain minimum salary (currently about $150 per week, and slated to increase to slightly over $425, if proposed rule changes go into effect.) There is also a set of detailed tests, including time spent in administrative/supervisory activities that determine whether an employee is exempt from overtime. If an employee spends too much of his time doing the same work as those he supervises, he may be entitled to overtime pay (something supervisors who do a great deal of bench work might be interested to know). The determination of supervisory status under the current law is complicated and spawns a great deal of litigation. Proposed new rule changes (see the Wage and Hour section, Department of Labor, at
www.dol.gov/esa/whd) would simplify this determination but would also make more employees eligible for overtime pay.

In this situation, it is probably best to address the problem with your supervisor directly. Point out that her request will entitle you to overtime (no matter how little) and that you will clock in again before doing the task. If she objects and insists that you work without recording your time, carry your complaint up the chain of responsibility according to your hospital policy. If you still get no satisfaction, you are entitled to make a complaint to the Department of Labor something most employers would rather avoid.

Employees are often reluctant to pursue such matters for fear of losing a job. This is an unfortunate reality, but both state and federal laws protect employees against retaliatory discharge for pursuing legitimate complaints. If you feel that your employment might be at risk, engage an attorney skilled in employment law before proceeding beyond a complaint to your supervisor.

Barbara Harty-Golder
is a pathologist-attorney consultant in Chattanooga, TN. She maintains a consulting law practice with a special interest in medical law. She writes and lectures extensively on healthcare law, risk management and human resource management.


August 2003: Vol. 35, No. 8

© 2003 Nelson Publishing, Inc. All rights reserved.

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