A technical question about NYS and perhaps Federal Labor law.
Situation: I am an full time, hourly wage worker for a casework company. The bulk of my time is spent in the shop where I manufacture our product. IF my boss asks me to travel to our latest install with the tools and the casework necessary to do the job, and in addition put in a full days work (8 hours) then the time I spend driving product and tools is overtime, right? Is he not obligated to pay me overtime rate for this time? The site is a two hour drive each way.
I can’t understand why he would be so nickel-and-dime about this since my work history has been pretty spotless with him.
Everything I have read about OT on the NYS dept of labor site suggests that he is obligated to give me time-and-a-half for the drive. My boss argues that I am not “working” during the drive and as such will only pay me my standard hourly rate. Any insights?? Thanks in advance.
Replies
NYS requires over 40 in a week to be paid time and a half. Some places will pay overtime past 8 hrs. in a day, but it is not required.
Bear
I ALWAYS put in at least 40 hours. I'm punctual and accountable. I just gotta wonder how come my pay stub says 46 hrs straight time...
Depends,
Do you go to the shop and pick up his vehicle and/or put supplies in your own and then go offsite or does he tell you to report to the other site? Your travel to the shop is personally commute time and not compensable. Travel from the shop to the secondary site is compensable. In other words you were told to report at such and such a time and place, once you did your end your on the clock. Now if he says don't come to the shop, meet us at the site at 8:00 then the drive time is on your dime because its just another commute.
Similarly, if he sends you back to the shop after the site work, you get paid until you reach the shop and finish up there but if he send you home directly from the site, then the travel time is just a commute.
Business vehicle, business tools, business product. If the install takes more than a day and all of our tools and materials are onsite already, but I drive a company vehicle to the site to perform the work (8hrs install, 4hrs drive time), do I still get paid at the overtime rate? Can he obligate me to take my own vehicle to save himself paying me the drive time?
The critical issue is to be able to differentiate between commute time and on the job travel.
The tipping point is where you are told to report to work and/or start work. If you are told/expected to be at the shop at 6:00 AM to leave for the jobsite, then you workday begins on or about 6:00 AM (or whenever the last guy gets there and you stop eating donuts and get in the trucks.) Your workday doesn't end until you have completed whatever task your employer expects you to before you are free to go. So if you are expected to unload the truck when you get back to the shop, your day ends when that task is complete.
As someone else pointed out overtime rules are an entirely different issue.
I'm pretty sure he is aware of the labor law. He just wants to pay me straight time for the job travel when it is clearly what puts me into overtime. He is, IMHO, being stingy and trying to pass off the cost of some unexpected overhead to me. I don't think that is very fair, and I will make sure he IS aware of the law. I'm not really sure that pressing the issue will get me anywhere though. I would happily negotiate other compensation (vacation or personal days, etc..) but It is clear to me he will be very stubborn about any perceived cost to him. I feel used.
Spalted if you have a 46 work week your boss owes your 40 regular hours and 6 hours of Overtime at time and half. The fact that the extra time was due to traveling to the site has absolutely nothing to do with it either from your perspective or his. You don't get paid overtime for traveling to the job site hours , you get paid overtime for hours worked over 40 in a given work week.
As for comment " I would happily negotiate other compensation (vacation or personal days, etc..) but It is clear to me he will be very stubborn about any perceived cost to him. I feel used." that's called "banking hours" and it's not a legal way out of having to pay you overtime. If lets say you do negotiate something with him along those lines you could always come back a year later with a DOL complaint on the overtime and he would still be liable for that back overtime pay. He should just pay you the overtime.
Don't let him use you. But don't do something (banking hours) that still leaves him exposed either.
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you're only used if you let it happen. you need to show him a print out of the labor law that apply's to him and you.
if that gets you nowhere then you need to make a choice. turn him in, which will in turn lead to your unemployment
or
keep those pay stubs that say 46 hours straight time. thats money in the bank. consider it severance pay
Some more regarding that bit about 'banking hours" f rom Workforce Management: Top Five Employer Mistakes Under the FLSA:
You know you could also just ask him to make a call to you local labor department office or email the state office to get some advice on how he should go about hanling this properly.
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One other thing, the DOL is 2 years behind in the hour and wage dept last I knew.
I think this thread epitomizes why small time employers are dumping their employees and outsourcing everything to independent contractors. I'm not against paying OT. In fact, when times were good, the boys had an open invitation to work as many hours as they wanted. I told them they should start banking some cash. They didn't listen.
jimAKAblue — "I think this thread epitomizes why small time employers are dumping their employees and outsourcing everything to independent contractors."
What makes you say that?
"I'm not against paying OT. In fact, when times were good, the boys had an open invitation to work as many hours as they wanted. I told them they should start banking some cash."
What does "when times were good" have to do with your willingness as an employer to pay overtime?
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Perhaps the employer is thinking of the following from the US Dept of Labor, although in this case the travel is not overnight.
29 CFR 785.39 - Travel away from home community.
Section Number: 785.39
Section Name: Travel away from home community.
Woody
HWG — "Perhaps the employer is thinking of..."
I'm not sure what the employer is thinking . Unfortunately most employers (contractors in the cases we talk about here) don't think period.
Any employer that REALLY UNDERSTANDS his or her costs of doing business will recognize that when you get to the bottom line having employees working overtime doesn't cost them any more than than regular time. In fact many smart employers recognize that as long as the productivity of their employees doesn't drop when the go into overtime they can make
Lets say by the time all your employees have put in their 40 regular time hours your company overhead and profit contributions or targets for the week have been reached. So the Gross Profit dollars generated by any additional OT hours doesn't have to pay for any Fixed Overhead Costs since they have already been paid for with the 40 hours the employee already put in. That leaves those all those Gross Profit dollars that used to cover your Fixed Overhead Costs available to pay for the time and a half increase on the employees wages.
Look at this example below. I've modeled a contractor on the low end of the markup scale. Most professional contractors have higher Burden Costs and higher Fixed Overhead but even for this contractor I'm modeling when he or she goes into overtime (without charging the client more for the overtime) they still earn a 6.67% Net Profit on their employee. (The burden cost on an employee working Overtime is figured as a percentage of the wage of that employee working at the Regular time and is not based on the time and a half wage. )
Wage
Burden
Cost
Fixed OH Costs
Billing Rate
25% of Wage
50% of Cost
Employee Regular Time
$25.00
$6.25
$31.25
$15.63
$46.88
Employee Overtime Time
$37.50
$6.25
$43.75
No Fixed Overhead Cost
$46.88
The Cost Difference Between RT and OT Hours Worked
$12.50
Unencumbered Net Gross Profit Left
$3.13
As I said most contractors running porfessional operations have higher Burden and Fixed Overhead Costs more like this example below:
Wage
Burden
Cost
Fixed OH Costs
Billing Rate
30% of Wage
75% of Cost
Employee Regular Time
$25.00
$7.50
$32.50
$15.63
$56.88
Employee Overtime Time
$37.50
$7.50
$45.00
No Fixed Overhead Cost
$56.88
The Cost Difference Between RT and OT Hours Worked
$12.50
Unencumbered Net Gross Profit Left
$11.88
20.8% Net Profit
And as you can see the more Burden and Fixed OH (Gross Profit) go up the better it gets for the employer to have his employees working overtime (provided their productivity remains the same).
Splated works for a "casework company" meaning they have a shop based operation so with their leasing space and capital equipment costs I am 95% confident the fixed OH is even higher again. He's upstate from me so his wage may be lower but the math principles stays the same.
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Nice charts and all, but I doubt they help the original poster much who was concerned about not being paid overtime. My point was to show that sometimes travel is NOT required to be paid at all, although I don't think that applies in his case. Another thing that could come into play during a holiday week, such as this wee with Veterans Day, is that holiday pay (if he gets any) is not considered time worked if he was given the day off. He could get 48 hours of reg time and no overtime this week (40 worked plus 8 holiday) and still be in compliance with federal law. I have no idea how state law reads there, it could be differnt.Woody
HWG — "Nice charts and all, but I doubt they help the original poster much who was concerned about not being paid overtime"
No my crunching the numbers doesn't help him but it can help make him smarter and more informed which is a powerful tool if he is talking to his boss about this and the boss uses the old 'we didn't figure for the overtime when we estimated this job' excuse and I also post this to generally inform and educate the other contractor/employers who read this thread too.
My point was to show that sometimes travel is NOT required to be paid at all, although I don't think that applies in his case.
And I agree with you there. I don't think it applies in his case.
Another thing that could come into play during a holiday week, such as this wee with Veterans Day, is that holiday pay (if he gets any) is not considered time worked if he was given the day off. He could get 48 hours of reg time and no overtime this week (40 worked plus 8 holiday) and still be in compliance with federal law.
That's true too. I've had a couple of employee' over the years that wanted me to pay him time and a half for the paid holiday that gave him 48 hours for the week. I would think that if that applied in his case his boss would have given him that explanation.
I have no idea how state law reads there, it could be differnt.
I gave him a link (although I think he had already been to the web site and read through it) in one of my earlier posts. New York State Department of Labor - Wages and Hours
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Another thing the employer should be doing. (and maybe they already are) is split out the Drive time from the On Site time for workers Comp.
Our Rate is pretty low. Maybe about $7-8 per 100. And the Drive time class doesn't make a bunch of difference. But Roofers and Carps are much higher. And would absolutely be worth the trouble.
I guess the employer would need to PAY OT to have to worry about WC classifications. (LOL)
But, like Gerald says OT isn't that big a deal. OT is Exempt from WC premiums. (in Oregon)
Scrapr — "Another thing the employer should be doing. (and maybe they already are) is split out the Drive time from the On Site time for workers Comp.
Our Rate is pretty low. Maybe about $7-8 per 100. And the Drive time class doesn't make a bunch of difference. But Roofers and Carps are much higher. And would absolutely be worth the trouble."
That's true too and and employer could contractually agree with his employees a different wage rate or compensation package for traveling time too.
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I say that because if employers hire indepencdent contractors, they can work all the hours they want without threats, ot, etc. Its just a simpler way of doing business. I don't have any employees and I'm not looking forward to the day when I will need to hire one.
jimAKAblue — "I say that because if employers hire indepencdent contractors, they can work all the hours they want without threats, ot, etc. ...."
Without threats?? What's that supposed to mean?
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Without threats?? What's that supposed to mean? >>>>>>>>>>>>>>>>>>>
Jerrald, if you are around people long enough you will find for some reason people don't like to work overtime. Doesn't make much sense but it is true.
My soninlaw works in managemennt for a company the refurbishs aircraft. $20+/hour jobs. They just laid off some workers that had complained about the overtime during the good times. Funny part is they are the same ones that complained about having to change shifts. His company likes it because they can get rid of these employees now.
This entire issue is nothing more than a discussion about freedom and individual rights (for me). Everytime a government imposes more regulation, we are further enchained by them. I chose to bank hours in my apprentice days and it benefited myself and family greatly. Without that option, we would have been limited to 35 hours (that was the union work week). I would choose it again today.
Edited 11/13/2009 10:14 am ET by jimAKAblue
I don't mind working the overtime when it is available. I like to think that when the work is good, then I should take advantage of that and git er dun. I see it as an opportunity to show that I AM a team player, but many don't share my outlook. I was informed today that I now have a new "blended ovetrime" rate for overtime that involves travel. I will post more when I learn more about it. The example provide to me shows a $$ breakdown that is closer to my employers idea than mine but gains me about $1.68/hr over regular time for travel time as OT in a weekly payroll period. Far from fair in my eyes but at least it is a start. I am still going to search for new employment. If my boss wants to be this stingy, and alienate a reliable worker, even when he is up to his armpits in backlogged work, then there are much bigger issues at large for this company. I don't mind the work there, but my coworkers make me crazy and I can employ my talent elsewhere. He is obviously not afraid to let me go so I'm not afraid to look for other work.
I travel three hours a day, 85 miles each way, I get paid from time I leave the office to time I get back. i work 10 hours on the job so I get paid for thirteen per day. Anything over 40 is overtime, client is billed for each minute I get paid for.
I never had any concern w/ STATE laws on OT; but, spent a bunch of time in the Federal service. As I recall, the Fed FLSA said OT applied to any hours over 8 in a day or 40 in a week. Unless a union agreement stipulated otherwise or a person's shift schedule was defined otherwise. Has that changed? Or did I misinterpret?DonDon Reinhard
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Don — "Has that changed? Or did I misinterpret?"
Yes, you must have misintrepreted it.
An employer can if they so choose offer OT pay for more than 8 hours in a day but OT according to the FLSA is time worked beyond 40 hours per work week.
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Jerrald: The folks I was dealing with were Federal Civil Servants. IIRC, they were paid OT for anything in excess of 8 hrs in a day. I see now the 8 hrs discussion in the explanation.ThanksDon Reinhard
The Glass Masterworks
"If it scratches, I etch it!"
Ya know Don now that I think of it you might not be wrong at all. I think in the case of some Federal employees there are some different rules that apply. I know there are some other weird exemptions too for instance I seem to recall that people who work in movie theaters you do not need to pay them time and a half for overtime. To hell if I know why that is.
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State and federal employment laws are exempt. The rules for overtime is in the union contract.
Splated I stand morally behind you in your effort to get what is legally owed you by your employer for your OverTime the link I just showed Don is to a law firm in Albany just south of you that specalizes in handling claims like yours.
You'll notice they have a page that decscibes FLSA & Retaliation
and they offer for a Free Consultation Request
Keep in mind while you employer may want to work out a ""blended ovetrime" rate for overtime that involves travel." with you and the other employees but even if that is legal he certainly can't apply it retroactivly. I hope you stand up for your rights and all the other employees rights who work at that company and I wish you luck in finding a new employer.
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Like Gerrald says, WHAT you are doing isn't the issue. Whether it's traveling, working, or just hanging around the jobsite because the boss wants you there, it's all about how many hours you put on the clock in a pay period (usually a week).There are continuous arguments in CA about whether or not working four 10 hour days per week should qualify an employee for eight hours of OT that week (four eight hour days plus two hours of OT each day). AKIK, it's "settled" that OT doesn't apply, but that doesn't stop the arguments. - lol
He needs to pay you overtime.
Youy are interpreting NY law correctly. Is it worth it in the time of unemployment to argue?
Might be better to let it slide. At least for now.
Spalted I would recommend you do not listen to frammer52. He is wrong about his intrepation of the law regarding overtime and his alluding to you possibly losing your job for making a fuss over this is niave and just outright wrong. Were you to ever lose a job becuase you brought a labor law violation to the attention of your employer you would have a great lawsuit and prpbably a ton of lawyers lining up to take your case.
But you both (you boss and you) need to get this right.
But YOU are definity NOT intrepeting the overtime regulations correctly. Quoting rom the web page New York State Department of Labor - Wages and Hours:
You DO NOT get two hours of overtime for working a 10 hour day. Or four hours of OT for a 14 hour day.
You Do get two hours of overtime for working a 42 hour work week. You DO get four hours of overtime for working a 44 hour work week.
The only way you are going to quailify for OT is if your weekly total exceeds 40 hours.
Once upon a time and I don't see it referenced anywhere now so I assume it no part of the law that if you worked a 12 hour day you got an extra hour of time at the regular rate so you got paid for 13 but as I said I don't see that in the current NYS regulations.
If your employer is edgey about paying OT hours thinking it costing him or her more I would suggest you point him something that I wrote about here regarding OT a few years ago:
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I agree, with your post & interpretation.
Frammer52 does have a point though, while any contractor would be exceedingly stupid to "fire" an employee over a legal payroll dispute, there's nothing that protects the employee from being the first to get ROF'd when the contractor hits a slow period.
I know what I'd do, but I know what I can get away with in my market. So I have a tough time giving my opinionated advise on what to do----- oh the conundrum ;-)
While the contractor would be stupid to fire someone for complaining about the extra 6 hrs a week of straight time he could always say just send him home early on friday.Back in the 80's I had a buddy who worked for a company (in Tennessee) that was doing something similar (standard work week was 45 hours). Company refused to pay overtime so someone complained to the labor board. They opened an investigation which resulted in the company having to back pay all employees for their OT for the past year... and start paying time-and-a-half over 40... They changed the work schedule to drop the standard work week to 40 after that.Steve
While I agree that Frammer may be wrong?????????????
How wrong is he?
I'm pretty sure that if the guy got fired he would be knee deep in lawyers who wanted to help him.............................but in the mean time? Can he live on what savings he has and what little he would have coming in AND could he hunt down a new job in this market?
Right, Wrong and Reality aren't always the same thing.
I know what I would and could do............as do you.................but our situations may vary.
Unfortunately.Frammers advice and guys who have no choice but to follow it because of their personal situations are EXACTLY why employers get away with this kind of stuff.
Another question arises as well:
Did this just happen once and was it possibly an oversight, or is it an ongoing problem?copper p0rn
While I didn't get this impression...................maybe this boss isn't so smart and actually thinks he's doing the guy a favor by paying him for time in the truck.
I've run into that before.
Hey jerrald, he already said he worked 40/ week
The only way you are going to quailify for OT is if your weekly total exceeds 40 hours. >>>>>>>>>>>>>>>>>>>>>>>>>
Redundant
By the way, after he pushes the issue, gets fired, yep, he is entitiled to the OT. Problem is he has to live while all these lawyers are lining up to take his case. In the meantime his exemployer can slow down his unemployment clam. Since there are not a lot of jobs available right now, I suggested to let things go for now.
Yes I would bring it to the employer's attention, but wouldn't push it.
Sooner of later the job market will get better, then it is time to push.
I was only giving him the advice my father would give me in a similar situation.
What if you got in an accident in the company truck. Would you be at work?
Of course you would.
I personally don't like driving any more. It is work. And there is considerable liabilty involved. That's work!
But, and that is a big but, you need to keep your job unless you have a better one lined up.
Maybe you could have more fun driving to and from? Stop for coffee? Play tunes?
You're not working so you might as well have fun.
Will Rogers
Edited 11/10/2009 11:10 pm by popawheelie
Huh. Around here, no one pays overtime in construction. That is to say, if I submit a timesheet with 45 hours, I get paid for 45 x my hourly wage.
No time-and-a-half, ever.
It's illegal but completely standard around here.
In NC, the Employment Securities Commission is always looking for employers not paying overtime. I've been audited by them twice, and they check everything that might show I didn't pay overtime when it was due. If NY does audits, unless his book keeper is also a master chef, he'll get busted. Doesn't mean he'll have to pay you, though. He is hosing you.http://www.tvwsolar.com
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Sounds like easy pickings for the BOLI (Berureau of Labor & Industries)
Ontario.
I had a boss that tried to pull something similar except he didn't want to pay me for the commute at all. How I see it that was a better argument. His point was that if I drove my own vehicle to a job 50 miles away that when I left I was free to do whatever I wanted and so therefore was off the clock. He eventually lost that argument when I said that I wouldn't travel to that job without being paid.
Your boss has a weaker argument because he's acknowledging that you were working. If you work more than forty than you should get OT. If he needs the job done so badly he should cut your regular hours on a different day, or pay the OT.
HOWEVER...
Firing you for not being a "team player," is easy and it might be hard to prove that the OT is why he let you go. Is the 2 hrs. of your labor worth your job? Is he likely to pull this kind of thing again? I don't know either way but you have to way the risks vs. the rewards.
Update
NYS DOL policy (and i use the term "policy" very loosly...there is no WRITTEN rule ((?!)) as recounted to me by a DOL representative:
Blended over time= ((hourly rate + travel rate)/2) X time and a half
Seems to me it should be weighted as well, but I don't think i fully understand it yet anyhow.
How can DOL enforce a policy that isn't even on the books??? I don't understand. I guess it may be time to find some skilled professional help...
Edited 11/25/2009 7:48 pm ET by Spalted
If you want to push it, I believe Jerrald gave you a reference to a labor lawyer.
Hey Spalted. I'll see you over in thewoodshedtavern dot com after you get your timeout.
Spalted,I sent a request/reply to this post, yesterday, via email.Even though you have visited Breaktime since then, I have not gotten any response.Therefore, I am forced to make a public request.Under the terms of use for Breaktime, users agree not to use "language or material that is insulting, abusive, obscene, harassing, bigoted, or sexually explicit."Misspelling, abbreviating, or any other method used to get an obscene word past the censors, will be considered a violation of the agreement not to post obscenities. The acronym you use immediately after "WRITTEN rule" is an abbreviation for an obscenity. As such, it violates the terms of use, here.Please edit your post to remove it.Thank you...It's all fun and games, until someone puts an eye out..You are always welcome at Quittintime
Ahahahahaha! I told you so! See ya in romper room corner!
Here in Cali over 8 hrs in a day is time and a half...
k
That explains why the state is so upside down.
IMHO, it doesn't matter what the spreadsheets say on whether or not overtime is an additional cost.
It comes down to the employer thinking/knowning that the 1/2 time that should be paid to the emploee for overtime is coming out of his pocket. Does he want to pay Joe Blow an additional $60 for overtime or does he keep the money for himself and take HIS family out for dinner.
The employee should be taking his family out for dinner for the fact that he gave up his family time.
I have also heard(had it happen to me) the arguement go other way where the employee should be paid less per hour for overtime hours because they are being paid more than they should and they are also less productive after 40 hours. I don't agree with this, but it is some peoples thinking.
My wife's last comany paid the guys $10 per hour for driving to jobs and they were paid piece work installing insulation. The install part usually paid $20-$30 per. If you could not install that much in an hour, you were let go. Some teams had 1 hour commutes and install for 8 hours. Other teams had 6 hour commutes and installed for 4. Both the same level of execution. Just some made alot more.
And yes, it was also race related descrimination. The white guys got the closer jobs and the better blowers and trucks.
The white guys got the closer jobs and the better blowers and trucks. "Why?
discrimination and the "good old boy club"
Timeout...lol. And I thought my mother was strict...
Thank you.=0)..It's all fun and games, until someone puts an eye out..You are always welcome at Quittintime
You haven't seen anything until you come to the tavern and seen what we have over the last year!>G<
I've never warmed a stool over at the tavern...but I don't see the door to get in either. Is there a cover charge?
Nope just ask for a moderator.
Hey don't go into the labor dept just yet. New law into effect after the first of the year that makes it harder for an employer to fire you over labor violations.
yes, $9.45 a month. make the check out to "Citzen against substandard housing" you can abrevate if you want.
Edited 11/30/2009 8:06 pm by brownbagg
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