How does the Fair Labor Standards Act
impact Flex Scheduling??
By Kirsten Ross, SPHR
I have received quite a few questions regarding the Fair
Labor Standards Act and how it impacts use of flexible scheduling.
As a result, I thought that I would address a few of the questions in the
If you are dealing with a majority of non-exempt workers,
you are limited in the number of flexible work options that you can provide.
You do need to be concerned with overtime and can, thus, not average the hours
over the course of a two week pay period. In other words, you can not have
someone work 35 hours one week and 45 the next.
There are, however, several different options that can
work. For instance, you can offer 4
10 hour days each week. If you are
dealing with a critically short applicant pool, you may want to consider 3 12
hour days for 36 hours of work but pay for 40 hours. Or, pay only the
hours worked and provide full time benefits at the 36 hours per week work
In some instances,
organizations qualify for the option of using an 8 or 80 schedule for
calculating overtime. In the case of an 8 or 80 schedule, the organization
must pay overtime for any hours worked over 8 in one day or 80 in a two week pay
period. Hospitals, for example,
qualify and can choose which calculation they will use; over 40 hours in a week
or the 8 or 80 schedule. Employees
must be notified of the method being used and the method of calculation must be
used consistently once implemented.
If, overall, an
organization is utilizing the 8 or 80 rule, utilizing a flex schedule will
require special notification to employees on the flex schedule.
You will want to change them to a 40 hour per week calculation schedule.
Your best bet is to have them sign an agreement that states that they are
aware that they will be on a 40 hour schedule rather than 8/80 in order to
accept the flexible schedule. Just
make sure that the agreement does not imply any sort of employment contract if
you are an at will employer.
And, while we are on the subject of FLSA, I would like to
cover a few of the misconceptions that I uncovered every time I taught a course
on the FLSA. Without fail the time
ended with supervisors and managers sitting there with the mouths open.
Myth #1: I
have a policy that states, “overtime must be pre-approved. If it is not pre-approved the hours will not be paid” I
don’t have to pay overtime.
can not utilize a policy that states that overtime must be approved ahead of
time in order to be paid for the overtime.
If you want overtime approved ahead of time you must invoke disciplinary
action if the employee does not follow the policy.
In other words, you can write someone up for not asking ahead of time to
work overtime, or you can address any inefficiencies or workload issues that are
causing the employee to require work outside normal business hours.
But once overtime is worked you MUST pay for it.
Myth #2: If
an employee goes to a seminar outside of work hours I do not have to pay them
for their time.
some instances you do need to pay overtime, in other instances you do not.
If the training meets the following you must pay:
If the following circumstances exist, you do not need to
If a non-exempt employee chooses to eat their lunch at their desk
and ends up answering the phone a few times as a result, they don’t need to be
paid for their time.
order to be considered an unpaid break, the employee needs to leave the work
area and/or perform absolutely no work for more than 20 minutes. If you allow the person to sit there and answer phones, that
is paid time regardless of whether or not they are eating their lunch or whether
or not they are choosing to do so.
Myth #4: A
non-exempt employee routinely works overtime but never puts it on their time
sheet. This sure is nice of them.
the company will stay on this employee’s good side. An organization is required to pay overtime.
If the employee decides that they want to be paid all the overtime
retroactively they can present their own records of time.
This could open up the organization to a review of time and payment
records for all employees. And you
could be required to pay more than just the back overtime.
So, beware of this situation.
Kirsten Ross is mother of two sons and is
a Certified Human Resource Professional (SPHR) dedicated to helping women
achieve more life balance and to transforming the design of work.
Visit Womans-Work.com at http://www.womans-work.com
to search our revolutionary flexible work job board featuring more than 35,000
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read valuable career, life balance and family articles. You may also email
her at mailto:KRoss@Womans-Work.com