by: Diana McManus
The United States Department of Labor (“USDOL”) has issued a recent opinion regarding whether prepayment of overtime paid to caregiver employees who work live-in and extended shifts based upon expected number of hours worked satisfied an employer’s overtime obligations under the Fair Labor Standards Act (“FLSA”). Specifically, an opinion was sought regarding whether overtime payments made to these employees in the same week in which the employee works the overtime hours, based on expected hours worked, may be credited towards the amount of overtime pay owed to employees under the FLSA.
Employers are required to pay employees one-and-one-half times their “regular rate” of pay for all hours worked in excess of forty (40) in a workweek. An employee’s regular rate of pay includes all renumeration for employment paid to an employee, with some exclusions. For instance, extra compensation provided at a premium rate paid for certain hours worked by the employee in excess of eight (8) in a day or in excess of the forty (40) in a workweek, are not included in the employee’s regular rate, and may be credited towards an employer’s overtime obligations.
The USDOL ultimately determined that paying overtime for hours over eight (8) in a day based on expected number of hours worked and providing supplemental pay for unexpected additional hours as appropriate is consistent with the FLSA’s overtime provisions.
When determining “expected number of hours worked” for live-in and extended shift caregiver employees, the employer can exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. Employers are required to track the actual number of hours worked each week and compensate employees accordingly. Any work-related interruptions to meal or sleep periods must be tracked and counted as hours worked, and the entire sleep period is counted as hours worked if interruptions prevent the caregiver from getting the required minimum of sleep time per day. No reduction is allowed unless the employee is able to get at least five (5) hours of uninterrupted sleep. If the employee works the expected number of hours, the premium paid satisfies the employer’s overtime pay requirements. If the employee works more than the expected hours, the employer must supplement the overtime premium with additional compensation as appropriate.
For further information regarding prepayment of overtime based on expected hours worked, please do not hesitate to call our firm.
