Forums
Part-time hourly employee
Legal Forum
Part-time hourly employee
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
We have a part-time hourly employee (20 hours per week) who does light clerical work. She has been asked by her manager to travel out of the country to be a "host" for a program that our company prese
0
Cat:Topic ForumsForum:ForumId54
Cat:Topic ForumsForum:ForumId54Discussion:DiscussionId32352
Forums » Topic Forums » Legal Forum » Part-time hourly employee
|
Part-time hourly employee
posted at 10/30/2006 7:16 AM EDT
|
Posts: 3
First: 10/30/2006 Last: 11/1/2006 |
We have a part-time hourly employee (20 hours per week) who does light clerical work. She has been asked by her manager to travel out of the country to be a "host" for a program that our company presenting. The duties while on this trip are not part of the hourly job description. The manager wants to hire this employee has an associate director, exempt position, to provide assistance to travelers and to handle issues/problems that arise while on this trip. The manager is not going on the trip. This employee would be paid a flat amount for this job (8 days). I'm uneasy about this but don't have resources to back me up. Can you give any advice? |
|
|
Part-time hourly employee
posted at 10/30/2006 12:03 PM EDT
|
|
Posts: 3870
First: 2/12/2002 Last: 11/2/2009 |
The way I'm reading your post, the manager wants to promote this person to an exempt position simply to avoid paying any kind of hourly rate or overtime. Is the expectation that this person would revert to her hourly part time position after the trip?
I would recommend that you research two items of info. First is the DOL short test for exemption. Although you don't describe the duties in detail, I would have a hard time believing that they'd pass the exemption test. Second thing is to research what time is compensable for an hourly employee while in travel status. It could be that the manager is under the misconception that all time spent while in a travel status is compensable. For example, travel as a passenger in a vehicle during regular work hours is compensable; travel mas a passenger outside regular work hours is not. And time spent in a hotel room not working is not compensable either. The DOL would take a very dim view of your employee's exempt status IMO. |
|
|
Part-time hourly employee
posted at 10/31/2006 1:49 AM EDT
|
|
Posts: 3
First: 10/30/2006 Last: 11/1/2006 |
Thanks Nork.
The manager isn't trying to get around paying the employee overtime; instead, he is trying to do the right thing (in his mind) by paying the employee a flat amount for the work to be done; work which is outside the regular job description. I was not aware that travel time outside of regular work hours isn't compensable. In fact, some employees travel early in the morning or late at night for the company's benefit. Where can I find more info about compensable travel? Kind regards. |
|
|
Part-time hourly employee
posted at 10/31/2006 4:23 AM EDT
|
|
Posts: 3870
First: 2/12/2002 Last: 11/2/2009 |
I apologize for jumping to the hasty conclusion that I did. We've seen many posts of organizations or managers trying to circumvent wage and hour laws on these forums.
Since the employee is paid an hourly rate, I see no reason to make the employee exempt for this one event. The simple solution is to pay the hourly rate for all hours worked. If it warrants more money for the extra effort, perhaps a bonus would be in order. You can find all the info you could ever want about wage and hour law at www.dol.gov |
|
|
Part-time hourly employee
posted at 10/31/2006 5:49 AM EDT
|
|
Posts: 147
First: 9/29/2006 Last: 2/11/2007 |
The wage and hour regulation at 29 C.F.R. 785.33 states that whether time spent in travel must be considered working time depends upon the kind of travel involved. The general rule is found in 29 C.F.R. 785.35, which provides that "normal travel from home to work is not worktime". That means that the normal commute from home to work and vice-versa is not compensable. However, 29 C.F.R. 785.36 states that home to work travel and back again that falls outside of the regular hours may be compensable hours worked. For example, if the worker is called back to work somewhere on an emergency basis for one of the employer's customers and must travel a "substantial" distance, the travel time would be compensable. The regulation does not provide that all such travel time is compensable; the decision would presumably be made on a case-by-case basis. Similarly, a special temporary assignment in another city would involve compensable travel time, according to 29 C.F.R. 785.37, but the employer could disregard the time corresponding to the normal home-to-work commute and the time spent on meals.
Time spent traveling between worksites during a workday is compensable under 29 C.F.R. 785.38. For example, if a worker reports to the main office to start the day and is then told to report to another job site, all time spent traveling to that worksite and back again to the main office will be paid. Some workers normally report to a number of jobsites each day as part of their duties; all such time is compensable. If the worker does not have to report back to the main office after finishing at the last jobsite, but instead returns directly home, the time spent returning home is not compensable. Many questions arise concerning travel to other locations involving overnight stays. 29 C.F.R. 785.39 states that "travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties." However, if the employee travels as a passenger outside normal working hours, the time is not compensable. An employee who serves as a driver or a pilot for other employees would be paid for the entire travel time. This same rule applies even in the case of travel on days not normally worked. For instance, if the normal hours are 8 am to 5 pm from Monday through Friday, and the employee must perform job-related travel on Sunday from 3 pm to 7 pm, the employer would need to pay only for the time from 3 to 5 pm. Similarly, work performed while traveling must be counted as hours worked under 29 C.F.R. 785.41. According to a DOL wage-hour opinion letter issued on September 21, 2004, travel between an out-of-town worksite and the employee's home that the employee undertakes for his or her own personal convenience, i.e., voluntarily, is not compensable. The travel time should be paid at the employee's regular rate of pay; however, it is permissible to have a wage agreement whereby employees are paid at a lower rate (at least minimum wage) for compensable travel time and other types of non-productive work time, as noted in 29 C.F.R. 778.318(b) and a DOL administrative opinion letter dated January 22, 1999 (BNA, WHM 99:8211). However, any such agreement should be clearly expressed in a written wage agreement signed by the employee, and the time so distinguished must be carefully and exactly recorded. Further, if such work results in overtime hours, the overtime pay must be calculated according to the weighted average method of computing overtime pay, as provided in 29 C.F.R. 778.115 |
|
|
Part-time hourly employee
posted at 11/1/2006 2:21 AM EDT
|
|
Posts: 3
First: 10/30/2006 Last: 11/1/2006 |
WOW! Thanks, Old HR, for doing all my homework!
And thanks again to Nork. And the rest of the story....the manager decided to send a full-time nonexempt employee who will receive regular pay plus a substantial bonus which more than covers for any overtime. |
|
|
Part-time hourly employee
posted at 11/1/2006 3:07 AM EDT
|
|
Posts: 147
First: 9/29/2006 Last: 2/11/2007 |
Be careful, that bonus may not be considered OT payment and in effect could increase your OT payment exposure.
Generally Bonuses paid to non-exempt employees for work they perform become included in the regular rate of pay and THEN the OT calculation is performed (please see 29 CFR 778.208 and 108 as well as 29 USC 207(e) and 207 (e) (3)(a)) an example. John makes $10 an hour in a week. If john performs a certain task he is paid $100 in bonus. If John works 45 hours that week and completes the task Johns pay for the week is: 1st 40 hours = $400 Next 5 hours = $50 Bonus = $100 Total = $550 divide that by 45 hours and you get $12.22 as the3 regular rate of pay for each hour worked. This regular rate is then multiplied by 1.5 to determine the OT rate. That equals $18.34. To then calculate the OT premium due John for the 5 hours of OT you simply take the difference between the $10 an hour paid and $18.35 and multiply that times 5 hours. This calculation 5 x $8.34 = $41.70. This brings Johns total pay for this week to $591.70. (29 CFR sec 207) |
|
|
Part-time hourly employee
posted at 11/1/2006 6:21 AM EDT
|
|
Posts: 3870
First: 2/12/2002 Last: 11/2/2009 |
Old HR is correct. If you do pay a bonus to an hourly employee who is eligible to receive OT for the week, you have to recalculate the base wage rate to come up with the new OT amount.
If the employee works less than 40 hours in the week, it's not a problem. |
|
|
Part-time hourly employee
posted at 6/20/2011 12:05 PM EDT
|
|
Posts: 8
First: 4/5/2005 Last: 9/13/2011 |
A colleague in my office brought this 2006 post to my attention today. I realize that the attribution intended for the fourth reply was likely somehow truncated by the forum software, but my agency (TWC) considers it important to protect its copyright, so for the record, that information was a quote from the book Especially for Texas Employers online at http://www.twc.state.tx.us/news/efte/h_travel_time.html, and was first published by the agency in 2002. |
Forums » Topic Forums » Legal Forum » Part-time hourly employee
