Unless there is a union agreement that would prevent such a move, then yes, your employer can lawfully and legitimately avoid overtime by changing an employees schedule. The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. If you mean after the fact, like from last week to this week, I don't believe that is legal in the US. If you mean in setting the schedule, your em In addition to writing web content and training manuals for small business clients and nonprofit organizations, including ERA Realtors and the Bay Area Humane Society, Lohrey also works as a finance data analyst for a global business outsourcing company. The U.S. Court of Appeals for the Eighth Circuit recently confirmed that the Another reason is that with only a few limitations, employers have no legal obligation to provide prior notice before changing a work schedule, regardless of the industry or location. After a complaint was filed with the U.S. Department of Labor, that agency investigated the situation and found no violation of the FLSA. Once the beginning of the workweek is established, it becomes fixed regardless of the actual hours worked. The employer my change the workweek if the change is intended to be permanent and is not designed to evade the overtime requirements of the FLSA. The pay range for this role is $17.49 an hour. Six Essential Pieces of a Pre-Planned Adoption Agreement, What to do if you are denied unemployment in Texas. H3012vY#3}` W8 ! The Eighth Circuit was quick to point out that the FLSA analysis by the Seymore court was wrong. The Eighth Circuits not-so-subtle language presents a cautionary tale for all wage and hour practitioners: avoid conflating the federal law controlling the application and interpretation of the FLSA with the state law that controls similar state wage and hour laws. This cookie is set by GDPR Cookie Consent plugin. Additionally, Paul conducts thorough workplace investigations, with a focus on high-profile incidents or allegations against senior management personnel. For example, New Hampshire employment laws require that an employer pay you for at least two hours of work at your regular pay rate. So, if you work more than 40 hours during the 7-day work week, it doesn't matter that some of the 40 hours was on a weekend. The Amsberry Law Firm, founded in 1995, has helped thousands of clients overcome their unique legal challenges. The U.S. Court of Appeals for the Eighth Circuit recently confirmed that the Fair Labor Standards Act (FLSA) does not prohibit an employer from modifying its workweek in order to avoid overtime costs. Under federal law, an employer pays an employee a flat weekly salary regardless of the hours worked in the workweek. It is shockingly common for major businesses, including retail establishments and popular chain restaurants, to expect staff members to work off the clock. Your employer could change your time card. These contracts do not supersede the law. Most employers really try to avoid OT since it is more expensive in total payroll costs. States that have show up pay laws must pay you a minimum amount for lost time if you show up for work, but youre either sent home immediately or before the end of a scheduled shift. Addressing Seymore directly, the 8th Circuit wrote, we decline to afford that decision any weight in construing the FLSA.. For example, if you work a 2 a.m.-10:30 a.m. shift, and you are scheduled to return at 11 p.m. that same evening, your hour between 11 p.m. and midnight might be counted as overtime. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. That is common. As of March 2018, show-up pay laws exist in California, Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Oregon, Rhode Island and the District of Columbia. This is at the federal level; states could require more stringent treatment at the local level. There is some good news, though, at least for hourly employees. How do you deal with employees who refuse to work overtime? For example, except in cases where employees have a collective bargaining agreement or are on FMLA leave, exceptions generally address work schedule changes in terms of how they affect time off and pay. Your employer can change your schedule, but if you are a nonexempt employee and work over 8 hours in a workday OR over 40 hours in a workweek (dont count meal periods), you must be paid overtime. This will save you time and effort, allowing you to focus on more critical business operations. The memo announcing the change stated: There will be no adjustment of your work week, which will remain from Tuesday-Monday [but] you will begin to have a reduction in overtime hours as your work week will be split into 2 payroll periods. Redland explained that the workweek change saved significant resources because it streamlined payroll and reduced overtime pay. No, California employees are not required to take paid time off (comp time) in lieu of being paid overtime. This issue is very fact-specific so you should talk to one of our experienced wage and hour lawyers if you think it applies to you. This field is for validation purposes and should be left unchanged. Familiarizing yourself with three common tactics employers use to avoid their overtime obligations can help you prevent the abuse of your rights as an employee. You cant be retaliated against for refusing to work in unsafe conditions, without your mandatory 8 hours off (if that applies to you), or for working on your seventh consecutive day. In most cases, employers can also discipline, demote, or fire employees who refuse to work the extra hours. If the terms of a collective bargaining agreement address scheduling, the employer must comply. Why is there such a big difference in the ionization energy between the 1st and 2nd ionization? The Eighth Circuit specifically referenced the analysis from Seymore and noted that that decision was premised on California law, which is more protective than the FLSA. In addition to the FLSA, states may also have laws which address overtime. Some state labor laws address scheduling changes that affect time off. Misclassifying someone as exempt is a key way many companies duck out of paying overtime. When. If they need to work extra hours to accomplish their work, you must compensate But the requirements for implementing an alternative workweek schedule are very strict, and few employers comply with them. WebThe court explained that an employer can make scheduling changes to avoid overtime and still comport with the FLSA. However, if you reduce your employee hours but not their workload, they may not be able to finish their tasks on time. The pay range for this role is $17.49 an hour. So when employers change the regular payday, there is bound to be some disgruntled employees. Under the FLSA, an employee is owed overtime for hours over 40 in a workweek, defined as a fixed and regularly recurring period of seven consecutive 24-hour periods that need not coincide with the calendar week but may begin on any day and at any hour of the day. Can you be forced to work overtime in California? An alternative workweek is an agreed-upon workweek where you are required to work more than 8 hours in a 24-hour period. Another example would be an employee who declined to work overtime because they had caregiving obligations to a disabled relative. An example would be a single parent who negotiated a set schedule at the time of hire and worked productively for many months, until a new supervisor decided this schedule was a hassle and withdrew the agreed-upon accommodation. You also have the option to opt-out of these cookies. The U.S. Court of Appeals for the Eighth Circuit recently confirmed that the Fair Labor Standards Act (FLSA) does not prohibit an employer from modifying its workweek in order to avoid Advance notice by an employer of the change in hours is not required. Can an employer change my work schedule as needed to avoid paying me overtime while still allowing other employees I - Answered by a verified Employment Lawyer can an employer change my work schedule as needed to avoid paying me overtime while still allowing other employees I work with the work the additional hours and get Your employer can adjust the weekly shedule to fit their needs..add/take hoursas far as I understand. (Signed agreement)My shift supervisor asked Do you work more than 40 hours without overtime pay? However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. Absent a collective bargaining agreement or contract that states otherwise, employers in Indiana may set their work hours at their own discretion. Under federal labor laws, employers have the right to change the beginning and the end of their workweek occasionally. For instance, employers should never cut a workers hours down in an attempt to avoid paying overtime. You are also entitled to overtime whenever you work more than 40 hours in a week. 2023 Kent State University All rights reserved. Your employer could ask you to work off the clock. Challenges Involved in Paying Non-Exempt Employees for Training and Travel Time: An Example, California Public Agency Labor & Employment Blog, Public Safety Video Briefing: Thinking About Body Worn Cameras- February 2023, California Supreme Court to decide whether whistleblower protections apply when the employer already knows about the violation, Complying with Your Agencys Title VI Obligations, Public Safety Video Briefing: Peace Officer Speech in California: Will Kirkland v. City of Maryville Have an Impact Here? 5 Can an employer force you to change shifts? However, the federal law and most state laws do not address daily overtime. Can employer change work schedule to avoid overtime? But employees can ask the employer for comp time instead of overtime if all of the following are true: The employee works 40-hour (has full-time employment); Are employers allowed to change your hours? Paul serves as a member of LCWs Public Safety Practice Group Executive Committee. By law, if an employer receives the benefit of an employees extra work, the employer must pay the employee for that work. It is legally The cookie is used to store the user consent for the cookies in the category "Other. Additionally, an employer cant change the work schedule of an employee on family and medical leave; the employee is entitled to return to the same shift or a similar one upon returning. It sounds as if you have created an informal comp time program. How do you calculate working capital for a construction company? Can I offer my employees comp time instead of overtime? document.getElementById( "ak_js_2" ).setAttribute( "value", ( new Date() ).getTime() ); Don't Get Exploited: How Spouses, Employees, Business Owners, and the Elderly Can Avoid Being Taken Advantage Of, Top Considerations for Military Families Considering Divorce, Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. Is unstable, employers in Indiana may set their work hours at their own discretion and effort, you! Under federal labor laws, employers can also discipline, demote, or employees... On more critical business operations resources because it streamlined payroll and reduced overtime pay may not be to! Misclassifying someone as exempt is a key way many companies duck out of paying overtime save you and... 1995, has helped thousands of clients overcome their unique legal challenges some news! 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