Title: Opinion File 74-2 thru 74-11
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003374/00001
 Material Information
Title: Opinion File 74-2 thru 74-11
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 74-2 thru 74-11
General Note: Box 14, Folder 4 ( Opinion File 1974 - 1975 - 1974-1975 ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003374
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text
r -


*^ '

MEMO

September 4, 1974

TO: MGG KEY WORDS:

FROM: TEC

RE: Proposed Overtime/Compensatory Leave Policy for SW


The following are my comments and suggestions regarding
certain portions of the 8 page Overtime and Compensatory Leave
Policy. The paragraph numbers correspond with paragraph numbers
in the policy statement.

1. (A) The definition of "overtime" is inappropriate.
There is no requirement under the FLSA for time and a half pay
to be given employees who work beyond the normal workday estab-
lished for their position. In the context of the FLSA "overtime"
should more properly be defined as hours of work performed in
any one work week in excess of forty.

1. (B) (2); 1 (C) I would eliminate any reference to
Lock and Dam Tenders pending a determination as to the
applicability of the overtime pay requirements to them under
the FLSA. A cursory search on my part failed to turn up
authority for refusing to pay them overtime compensation.

2 (C): This provision mistakes the applicable law. The
FLSA defines "employ" to include "suffer or permit to work."
29 USCA 203 (g). The Wage and Hour Administrator takes the
position that the overtime requirements are ayplicable where
the employee volunteers for the additional work and where the
employer knows or has reason to know that the employee is
continuing to work. The employer cannot sit back and accept
benefits without compensating for them. See, Interpretative
Bulletin, Sections 785.11 785.13 attached

I would advise omission of this provision altogether plus
informing each Division Director of his responsibility to
prevent overtime work by employees when not required or desired.

2 (D): If the approval of Division Director is condition
precedent to payment of overtime compensation there is room for
violation of the FLSA. Under the Act, once the extra work has
been performed, the employee has a vested right to overtime pay.

2 (F); 2 (G); 2 (J); 2 (K); 2 (L); 2 (M):
8 (d); 9; 10;

All of the foregoing paragraphe deal with the established
practice of granting "compensatory leave time" to employees who


~





. 7 4-3


MEMO TO: MGG SEPTEMBER 4, 1974 Page 2


work overtime. This entire aspect of the proposed policy is
contrary to the overtime provisions of the FLSA and should be
modified prior to adoption by the governing board.

(A) As proposed the system would work as follows:

(1) For each hour worked in excess of the normal work day
the employee is entitled to overtime pay or, in the discretion
of the Division Director, compensatory leave time.

(2) If compensatory leave time is chosen, for each hour of
overtime worked the employee receives an hour of compensatory
leave time.

(3) This compensatory leave time need not be used by the employee
during the work week in which it is accumulated ,but may be
carried forward from week to week.

(4) Compensatory leave time will be absorbed by the employee
if his absence from work duee to illness or vacation uses up
all of the employee's sick leave or vacation leave.

(5) Compensatory leave time will be lost altogether if the
employee is fired or voluntarily terminates his employment.

(6) On January 1 of each calendar year accumulated compensatory
leave time will be reduced to 120 hours, the employee will receive
time and a half pay for all hours in excess of 120 he possessed
at that time.

(7) Presumably for each hour of compensatory leave time used
by an employee:

(A) he need not be present or working, and,

(B) he will receive his regular rate of pay

(B) Defects in the proposed system:

(1) The proposed use of compensatory leave credits, in effect, averages
hours worked by employees over more than one work week. This may
not be done because the Act upes only a "single work week" as its
standard.

(2) The proposed use of compensatory leave credits denies each
employee W the time and a half characteristic of overtime pay.

(3) The proposed use of compensatory leave credits in effect
accumulates overtime pay which normally must be paid to the employee
when he receives payment for straight time work for the same period
of time.






S^-7 4'-4

Page 3 MEMO September 4, 1974


In an opinion letter of the Wage and Hour Administrator
dated September 1, 1965 and found in the Wage and Hour Manual
at pages 94: 1710 and 1711 a similar plan was found to be contrary
to the FLSA. (a copy is attached)

(C) Alternatives to the Proposed Compensatory
Leave Credit System

(1) Insure that no employee works more than 40 hours in any given
work week. This should be accomplished by requiring each employee
to use his compensatory leave credits in the work week in which
they were earned.

Thus if an employee works the following schedule, no overtime
payments are required:

Mon: 8 hours
Tues: 10 hours
Wed: 6 hours
Thurs: 12 hours
Friday: 4 hours

40 hours total

Should an employee fail to absorb all compensatory leave
credits in the work week in which they were generated, he must
receive overtime pay at the rate of one and a half times his
regular rate of pay at the end of his regular pay period.

Thus if an employee's schedule is as follows, overtime pay
is required in the amount of 1 1/2 times his regular rate for
three (3) hours of work:

Mon: 8 hours
Tues: 12 hours
Wed: 8 hours
Thurs:. 4 hours
Friday: 11 hours

43 hours total

(2) Use the so called "time-off" plan to insure that an employees'
bi-weekly payments remain stable. The "time-off" plan is explained
at WHM, 94:1712 1713, a copy of which is attached, and works
as follows:

Assuming wage payments are made on a bi-weekly basis, the
bi-weekly wage can remain fixed, if for each hour worked in excess








MEMO SEPTEMBER 4, 1974 PAGE 4


of forty (40) in the first week, the employee is required to
refrain from working an hour and a half in the second week.

Thus, if the regular rate of pay is $2.00 an hour and an employee
works forty-four (44) hours in the first week of the bi-weekly
pay period and only thirty-four (34) hours in the second week, his
bi-weekly wage is $160.00. This is computed as follows:

40 hours x$2.00 = $ 80.00
4 hours x 3.00 = 12.00
34 hours x 2.00 = 68.00
$160.00

It should be noted that $160.00 equals the bi-weekly wage the
employee would receive if he worked two normal forty hour weeks.

Although the "time-off" plan appears to be an "averaging"
device, because computation of wages is accomplished on a week
by week basis it is not contrary to the FLSA.





TEC/ha











3,.


74-6


ADMINISTRATOR'S INTERPRETATION WHM 93:103


E' '
(Eb% JI3V-


m eed be no exertion at all and that all
.- toUra are hours worked which the
N uplee is required to give his em-
ployer, that "an employer, if he
chooses, may hire a man to do nothing,
Of to do nothing but wait for some-
hi|, to happen. Refraining from
OthW activity often is a factor of
a instant readiness to serve,. and idle-
=mu playA a part in all employment
ih a stand-by capacity. Readiness to
Serve may be hired, quite as much as
service itself, and time spent lying in
walt for threats to the safety of the
employer's property may be treated by
the parties as a benefit to the em-
pioyer." (Armour & Co. v. Wantock,
323 U.. 126 (1944); Skidmore v. Swift,
33 U.S. 134 (1944)) The workweek
ordinarily includes "all time during
which an employee is necessarily re-
quired to be on the employer's prem-
Ises, on duty or at a prescribed work
place." (Anderson v. Mt. Clemens Pot-
tery Co., 328 U.. 680 (1946)) The
Portal-to-Portal Act did not change
the rule except to provide an excep-
tion for preliminary and postliminary
S activities. See I 785.34.
8785.8 Effect of custom, contract, or
agreement.
The principles are applicable even
though there may be a custom, con-
tract, or agreement not to pay for the
*time so spent, with certain special
statutory exceptions discussed in
II785.9 and 785.26.
6785.9 Statutory exceptions.
(a) The Portal-to-Portal Act. The
Portal-to-Portal Act secss. 1-13, 61
Stat. 84-89, 29 U.S.C. 251-262) elim-
Inates from working time certain
travel and walking time and other
similar "preliminary" and "postliml-
nary" activities performed "prior" or
"sMbsequent" to the "workday" that
are not made compensable by con-
tract, custom, or practice. It should
be noted that "preliminary" activities
do not include "principal" activities.
See 11790.6 to 790.8 of this chapter.
Section 4 of the Portal-to-Portal Act
4oes not affect the computation of
hours worked within the "workday."
S "Workday," in general, means the
period between "the time on any par-
ticular workday at which such em-
I lovee commences [his] principal


Copyright 0 1970 by The Bureau of National Affair, Inc.


A.


activity or activities" and "the time
on any particular workday at which
he ceases such principal activity or
activities." The "workday" may thus
be longer than the employee's sched-
uled shift, hours, tour Of duty, or time
on the production line. Also, its dura-
tion may vary from day to day de-
pending upon when the employee
commences or ceases his "principal"
activities. With respect to time spent
in any "preliminary" or "postliml-
nary" activity compensable by con-
tract, custom, or practice, the Portal-
to-Portal Act requires that such time
must also be counted for purposes of
the Fair Labor Standards Act. There
are, however, limitations ,on this re-
quirement. The "preliminary" or
"postliminary" activity in question
must be engaged in during the por-
tion of the day with respect to which
it is made compensable by the con-
tract, custom, or practice. Also, only
the amount of time allowed by the
contract or under the custom or prac-
tice is required to be counted. If, for
example, the time allowed is 15 min-
utes but the activity takes 25 minutes,
the time to be added to other working
time would be limited to 15 minutes.
(Galvin v. National Biscuit Co., 82 F.
Supp. 535 (S.D.N.Y. 1940) appeal dis-
missed, 177 F. 2d 963 (C.A 2, 1969))
(b) Section 3(o) of the Fair Labor
Standards Act. Section 3(o) gives stat-
utory effect, as explained in' 785.26,
to the exclusion from measured work-
ing time of certain clothes-changing
and washing time at the beginning or
the end of the workday by the parties
to collective bargaining agreements.
[E. NOTr: Sec. 785.9(b) reads as
amended August 10, 1965.]
Subpart C-Application of Principles
785.10 Scope of subpart.
This subpart applies the principles
to the problems which arise fre-
quently.
EMPLOYEES "SUFFERED OR PRM nTED"
WORK
785.11 General
orkot..uQ ALsue;g or
0 d.Luworktinv. For example,
an employee may voluntarily continue
to work at the end of the shift. He
may be a pieceworker, he may desire


3.


9

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It


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WHE-1s














I
74`7,


to finish an assigned task or he may
wish to correct errors, paste work
tickets, prepare time reports or other
records. The reason is immaterial.
The employer knows or has reason to
believe that he Is continuing to work
and the time is working time. (Han-
dler v. Thrasher, 191, F. 2d 120 (CA.
10, 1951); Republican Publishing Co.
v. American Newspaper Guild, 172 F.
2d 943 (CA. 1, 1949); Kappler v. Re-
public Pictures Corp., 59 F. Supp. 112
(S). Iowa 1945), aff'd 151 F. 2d 543
(CA. 8, 1945); 327 U.S. 757 (1946).;
Hogue v. National Automotive Parts
Ass'n, 87 F. Supp. 816 (E.D. Mich.
1949); Barker v. Georgia Power &
Light Co., 2 W.H. Cases 486; 5 CCH
Labor Cases, para. 61,095 (M.D. Ga.
1942); Steger y. Beard & Stone Elec-
tric Co, Inc., 1 W.H. Cases 593; 4
Labor Cases 60,643 (N.D. Texas 1941))
785.12 Work performed away from
the premises or job site.
The rule is also applicable to work
performed' away from the premises
or the job 'site, or even at home. It
the employer knows or has reason
to believe .that the work is being per-
formed, he must count the time as
hours worked.
7 785.13 Duty of management.



on- oa rule against such work is


not enough. Management has the
power to enforce the rule and must
make every effort to do so.
WAITnDG TRM
0785.14 General.
Whether waiting time is time
worked under the act depends upon
particular circumstances. The deter-
mination involves "scrutiny and con-
struction of the agreements between
particular parties, appraisal of their
practical construction of the working
agreement by conduct, consideration
of the nature of the service, and its
relation to the waiting time, and all
of the circumstances. Facts may show
that the employee was engaged to


wait, or they may show that b.h
waited to be engaged." (Skidmore Yf.
Swift, 323 U.S. 134 (1944)) Such que ,
tions "must be determined in accord,
ance with common sense and the gen
eral concept of work or employment
(Central Mo. Tel. Co. v. Conwell, 110
F. 2d 641 (CA. 8, 1948))
785.15 On duty.
A stenographer who reads a boomi
while waiting for dictation, a i
singer who works a crossword pus ll
while awaiting assignments, a firemant
who plays checkers while waiting t10
alarms and a factory worker who
talks to his fellow employees while
waiting for machinery to be repaired"
are all working during their periodSl
of inactivity. The rule also applies to ,
employees who work away from ts .
plant. For example, a repair man I ,
working while he waits for his em-
ployer's customer to get the preminl '
in readiness. The time is worktiO <,
even though the employee is allowed
to leave the premises or the job sit
during such periods of inactivity. Tbs
periods during which these occur an
unpredictable. They are usually of
short duration. In either event the .*
employee is unable to use the time ef- J
fectively for his own purposes. It be-.
longs to and is controlled by the em
player. In all of these cases walting llS
an integral part of the job. The em-
ployee is engaged to wait. (See: Sk.
more V. Swift, 323'U.S. 134, 137 (1944)
Wright v. Carigg, 275 F.2d 448, 14 W ,
Cases 492 (CA. 4, 1960); MItchellU '
Wigger, 39 Labor Cases, para. 66^7i 1
14 W.H. Cases 534 (D.N.M. 1960);
Mitchell v. Nicholson, 179 F.Supp. 2,
14 W.H. Cases 487 (W.D.N.C. 1959)) L,4
S785.16 Off duty.
(a) General. Periods during whi&h
an employee is completely relleve d
from duty and which are long enough ,,
to enable him to use the time eflfec5
tively for his own purposes are n 0
hours worked. He is not completely
relieved from duty and cannot us tlE
time effectively for his own purpOil
unless he is definitely told in advanse
that he may leave the job and that Mi
will not have to commence work Uti0
a definitely specified hour has arrive""
Whether the time is long enough t
enable him to use the time effectiely


WHM 98:104


WHAT ARa HOURS OF WORK


10-17-"


wKal*


Wa sa& nours
















COMPUTING OVERTIME PAY


At no time may the employer owe the
employee overtime compensation. In
any workweek wherein the hours
owed the employer are not sufficient
to equal the additional overtime
compensation due the employee, the
difference must be paid in cash.
While it is possible for a prepay-
-ment plan to be operated in com-


11-134 ~.


pliance with the Act, it has been J
WHPC Divisions' experience that b~
cause of misunderstandings and ti
technical requirements of such Pla, *w.
violations of the Act's overtime coa*
pensation provisions have result. ",
(Opinion signed by Wage-Hour Ad- '14
ministrator Clarence to IundqUli
June 23, 1965).


COMPENSATORY TIME


: This. is in further reply to your
letter of June 28, 1965 regarding the
application of the Fair Labor Stand-
ards Act to the Credit Union.
S You enclosed a copy of revisions to
your client's Employees Policies and
Practices Manual relating to overtime
and compensatory time.
In your client's plan, it is stated
that "Compensatory time will be liq-
uidated at the earliest possible op-
portunity, preferably within the same
period but not more than four pay
periods after the time worked, and
before annual leave is granted.
Where time is not available to the
employee to liquidate compensatory
time within the leave year, credit for
compensatory time may be carried
over into the following leave year.
The maximum amount which may be
carried over Is eighty (80) hours.
When a resigning employee has com-
pensatory time to his credit, the date
of separation will be extended to in-
clude the compensatory time due the
employee. If this is Impractical, the
employee will be paid overtime pay at
the rate at which earned in lieu of
compensatory time. The maximum
amount of compensatory time sub-
ject to this provision is eighty (80)
hours."
The act takes a single workweek as
its standard and permits no averaging
of hours over two or more we e k s..
Time and one-half overtime compen-
sation must be paid the employee for
all hours which he works in excess of
40 in any workweek. The pay period
need not, however, coincide with the
workweek. Where the pay period is
biweekly, semi-monthly, or monthly,
the amount of compensation due the
wages an


employee at each pay period must' .bS ..
computed on the basis of each we ek
standing by itself. Also, overtime com*
pensation due an employee must be
.paid in cash and normally at thei.,"S
time of the regular pay period, thi ,.
is, when the employee customarily rt*-
celves his straight-time compensation
It may not be accumulated to ib
paid at any time subsequent therek0.
Your client's proposed method Of
compensating his employees for over-
time hours by granting compensato0 'y
leave is, therefore, not in accordance ,
with the requirements of the IMw
There is an arrangement, however,
called the "time-off plan" by which
employees paid biweekly, such as
your client's employees, may' be
granted time off as an offset against
overtime worked in a different week j:
of the pay period. In effect, the eMa- .
player lays .off the employee a suffl-
cent number of hours during some
other week of the pay period to off-
set the amount of overtime worked.,"'
To satisfy the -act's requirements, i,
time-off plan must meet the follow ,
Ing conditions: .X'V
1. The employees must be emplO"de. ."
by the hour, at fixed hourly rates Of
pay, or be paid a regular salary Fe ib
a fixed number of hours a week.
2. The pay period must be lonfet
than a week, i.e., biweekly, sm"
monthly or monthly.
3. Time off adjustments in the rat ,
of 1Y hours off for each overtiUM .
hour worked, must be made wlthl
the pay period.
4. Straight time and overtime com*
pensation for the hours actually ;,r
worked in each workweek of the pay
s Hourn Weuw4r


WHM 94:1710


1* I.
4A,


S This Is in fi
.. ,r of August
ormatlon con
@ Of the Fair La
guaranteed wi
4" prepayment
lBection 7(e)
the act which
to pay the as
*' 1ch week to
overtime and
S 0vary from we
,; ~e.tlon of sect
se tons 778.
MM.~ 94:85-


A. ,.
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pi"

4raving oyel
t':eIma1'



Rmeoed oz
lat
4.. a rip


84 bac
'. ~ ~ .~:OP~cl t
b :~': ?1dIrau g his


wbIe)b. ouch
EcatIOUS 778.
the enc010
"Q CS~l for ce~a
based on the,
The plan a
W.41 AW1 e 4(
'*Moad of le
: -ou Will note
f nalosed cOP3
buPI ;ltn, Part 76J
*wor 'hot re
pnzIttod is
i1ev~eth;t an
tIMe So sP012
hours ot emp
~J tLhe act, even
1154 been giv(
A- *ZP~Wesely Inst,
_AWL'.A9 perform w(


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110 "1

















TInE OFF & PREPAYMENT PLANS WHM 94:1711


0fl. d must be computed on the es-
'Wl hourly rates and paid cur-
"A MU -at the end of each period,
'' V #th l rpuk regard to hours worked or
', U p In lany other pay period.
i '. .p" ..*. lD the overtime section of your
S i 1t's plan, it is indicated that "the
im um rate of pay for an employeee
at overtime compensation can-
Vl0R ^W8^ dne and one-half times the
.b rate of pay of a G-9/1." An
.<.e:e .'p s regular rate of pay under
i4 At i~ computed, in general, by
.< a4tl his total remuneration for
-. i.B ou t worked in the workweek by
Stol number of hours actually
SU 2 4 by him in that workweek for
"h-Ich such compensation was paid.
S letoni 778.107 through 778.122. of
l. e enclosed Overtime Bulletin
S~IWH M 94:51) contain the prin-
S'V~pae" for computing overtime pay
S. sd on the "regular rate".
T : plan also states that "overtime
S t' i not be ordered or approved for
'",. o1d0 of less than one half-hour".
'":*. YO Uo will note in Section 785.11 of the
S; : "I ~fcloge*d copy of Interpretative Bul-
SI' .~'~~UI Part 785, on Hours Worked that
S* ",( ) .'* W O not requested but suffered or
f litted is work time". Where an
player knows or has reason to be-
S:se that an employee is working, the
S~,:*ttl 0 s0o spent must be counted as
'*"' ',,- i f.l ir$ of employment for purposes of
"'. 'l: the act, even though no permission
$ ,'*t ,. ,iiut been given or the employer has
0 p esusly instructed the employee not
i* perform work during such periods.


S; .; GUARANTEED WAGE
SThi Is ln further reply to your let-
t t( of August 10, 1966, requesting in-
formation concerning the application
of 0he Pair Labor Standards Aet to a
r Uaanteed weekly wage plan and/or
i ,;v ^ a prepayment plan.
Section 7(e) is the only provision of
the act which permits an employer
S ," to pay the same total compensation
e ch' week to an employee who works
overtime and whose hours of work
vry from week to week. The appli-
e tlon of section 7(e) is discussed in
actions 778.402 throu g h 778.414
SWHM 94:85-94:90] of the enclosed


As indicated in Section 785.47, more-
over, an employee must be paid for all
time worked. While insubstantial or
insignificant periods of time outside
the scheduled working hours may be
disregarded as de minimis, this rule
applies only where a few minutes of
work are involved and where the fail-
ure to count such time is due to con-
siderations justified by industrial
realities. It would not apply generally
to a situation where as much as one-
half hour of working time Is involved.
With regard to your statement on
work in excess of the scheduled work-
week by senior management person-
nel, it should be pointed out that
the exemption from the minimum
wage and overtime pay requirements
provided by section 13(a)(1) of the
act applies only to employees em-
ployed in a "bona tide executive, ad-
ministrative or professional ca-
pacity ." as those terms are de-
fined in Regulations, Part 541 [WHM
92:601]. Qualification for exemp-
tion as an "administrative" employee
depends on whether the individual
employee meets all the pertinent
tests relating to dutie s, responsibil-
ities, and salary set forth in Section
541.2 of the regulations. If the em-
ployees with whom you are concerned
meet all of these tests, they are not
required to be paid for their overtime
work. (Opinion signed by Acting
Wage-Hour Administrator Duane A.
Wendele, September 1, 1965)


OR PREPAYMENT PLAN
Interpretative Bulletin, Part 778, which
replaced Interpretative Bulletin No. 4.
It should be especially noted that
proper application of section 7(e) re-
quires that the employees' duties must
necessitate variations in weekly hours
of work both below and above the
statutory maximum hours standard.
Information concerning prepay-
ment plans was omitted from Inter-
pretative Bulletin, Part 778 because
experience has shown that in most
instances in which they were under-
taken there was apparent misunder-
standing, with the result that the


Copyright 0 1970 by The Bureau of National Affairs. Inc.


74'-


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COMPUTING 0


basic, requirements of the act had not
been. met. The basic principle of a
prepayment plan is, for purposes of
the act, that an employer pay in ad-
vance overtime compensation to be-
come due to an employee in an
,attempt to keep the employee's wage
or salary constant from pay period to
pay period. Under such a plan any
excess payment made for short work-
weeks must be regarded by both the
employer and the employee as a loan
or cash advance to be repaid- either
by offset against future overtime
earnings or by refund in cash when
employment is terminated. When the
credits are not absorbed or recovery
otherwise made within a reasonable


Ai:


PREPAYMENT PLAN FOR MINIMUM WAGE


This is in response to your recent
inquiry ... requesting an opinion as
to whether a prepayment plant can
be used with respect to agricultural
employees paid by the hour at the
minimum wage and above, but not
subject to overtime under the 1966
amendments to the Fair Labor Stand-
ards Act.
The prepayment plan which you
mention in your letter is a plan ap-
proved by the Divisions as a method
of paying overtime under the Act. It
.does not contemplate the payment
of minimum wages. Whereas we have
studied the effects of a prepayment
plan in relation to overtime we have
not done the same in relation to the
minimum wage and would want to
know how your client's proposed plan
would operate.
While an employee must be paid
the full amount of .minimum wage


due him at his regular pay periods,
there is no provision in the Fair La-
bor Standards Act, as amended, whlIh
prohibits an employer from maklnl
loan in the nature of an advance
payment to an employee in agrlcud*
ture paid pursuant to section 6(a)(6)
of the Act. However, the arrange
ment must be clearly understood and
.agreed to by the employee. Records
must clearly show the loan and nagu
of repayment. Here again, we could
not approve such advance paymen)l
without careful study of how i ti
plan would operate.
If your client desires to undertake
a prepayment plan or a wage advance,
we would be glad to review the de-
tails of a specific plan. (Opinlio
signed by Wage-Hour Administrator
Clarence T. Lundquist, April 18, 10f)


TIME-OFF PLAN


This is in further reply to your
letter of August 31, 1968, which in-
quires whether the "time-off" plan
described therein complies with the
overtime pay requirements of the
Fair Labor Standards Act.
The act does not prohibit an em-
ployer from maintaining his employ-


ees' salaries at a constant level irot
pay period to pay period by controll-
ing the number of hours they work
Thus, where overtime is worked 1I
one week of a pay period, the em*
ployee may be laid off a sufflcleat
number of hours within the pay PI-
riod to offset the amount due him


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VERTIM PAY 12-M1 34 .

time,'the indication is that the, f
no loan or advance, in fact, but : ,
the plan is simply a bookkeeping i
vice and consequently not Ia ewo I
pliance with the requirements of. tae
act. Also, such plans require WS
maintenance of a running acco el
for each employee of the amount W
the employer's credit. At no te'
may the employer owe the emplo@l
overtime compensation.. In'any wolr- .
week in which the hours, owed tl
employer are not sufficient to eqU '
-the additional overtime compenhion l '
due the employee, the difference murt
be paid In cash. (Opinion signed I
Wage-Hour Administrator Clarn m
T. Lundqulst, September 8, 1966)


WHI 94:1712


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.TIME OFF a PREPAYMENT PLANS


iR vrtime compensation. This is ac-
*i tInpbihed by allowing the employee
Wi eM and one-half hours off for each
#* i rtime hour worked. It should be
O: Wid, however, that this arrange-
k 1nt does not permit the employer to
"': p' for overtime In time-off.
'''.t hosr, the employee receives all
.'- eotPnesation, including overtime,
UM'nputed for each week separately,
mitr bl total earnings for the pay
0(tlod are controlled by limiting he
S 4u'ber of hours he is permitted to
Wk, It should be noted that under
*t arrangement overtime compen-
MlnU0a due an employee for a work-
wk In a particular pay period may
SSot be offset by time-off in another
WP period.
WR6hre the employee is paid semi-
'.4:ltonthly and there Is a workweek
ikh begins before or extends be-
d 7W the pay period, it is not possible
,I Certain at the time the pay pe-
ilO ends whether any overtime will


WHM 94:1718


be worked during the split workweek.
The employer may pay the requisite
additional compensation for the num-
ber of overtime hours worked during
such workweek at the next succeed-
ing period. At each pay period the
employer will meet the requirements
of the act if he pays an amount In
addition to the straight-time wage or
salary equal to one-half the regular
rate of pay for the number of over-
time hours worked in each of the
completed workweeks In the period.
In other words, overtime compensa-
tion earned in a particular workweek
must be paid at the regular pay pe-
riod in which such workweek ends.
Payment for a workweek, however,
may not be postponed beyond the pay
period In which It ends. The time-off
arrangement you describe appears to
meet the requirements of the law.
(Opinion signed by Wage-Hour Ad-
ministrator Clarence T. Lundquist,
September 19, 1968)


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Copyright 0 1971 by The Bureau of National Afairs, Inc.


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