can I be paid in comp time instead of overtime pay?

A reader writes:

I work for a chapter of a national nonprofit organization managing several fundraising events. I am becoming increasingly frustrated with the way our organization handles overtime during our busy event season, and am wondering if it’s completely legal.

At the end of 2016 with the pending overtime law, the organization decided to change all full-time development staff to from (salaried) full-time exempt to hourly full-time non‐exempt. Of course, the law never passed, but the organization kept the changes in place. We are entering our busiest time of year and my colleagues and I find ourselves working over 40 hours a week, especially on weekends. Evenings are when most of our volunteers are accessible, and weekends are when the actual events take place. While the official policy states all overtime needs to be approved by a manger in advance, it is common knowledge that overtime will not ever be approved. Instead we are supposed to take comp time as compensation for any overtime hours. Plus, I don’t always know ahead of time if I’ll be working overtime. Sometimes an issue comes up in the evening or on a weekend and I need to deal with it immediately.

From what I’ve read, the law says that any comp time given must be taken with in the week it is accumulated. However, this isn’t always possible. I simply can’t afford to work any less during the work week without out missing key meetings and deadlines. In order to reach my event’s fundraising goals, I sometimes need to work a 50-60 hour work week. On top of that, there is no real way we’re tracking our overtime hours other than using the honor system. My manger doesn’t have a problem with us “banking” comp time and using it whenever we’d like.

Last year, a colleague was paid overtime one week, but was told to take the “extra” time off unpaid later that month.

Honestly, during this busy time, I’d rather have overtime than keep weeks of comp time saved up. Is this legal? Should I talk to my manager, or go right to HR at our headquarters? Or do I need to simply suck it up and only work 40 hours a week even if it means my event (and how the majority of my performance reviews are measured) would suffer?

Yeah, this isn’t legal.

If your organization has you classified as non-exempt, which it does, the law requires them to pay you overtime (meaning 1.5 times your normal pay rate) for any hours over 40 you work in a week. You can be given comp time instead, but it must be used within that same work week. If it’s not used within that same work week, it’s got to be paid out as overtime in your next check.

It’s not legal to tell you to bank it as comp time for later use.

Some notes about this: Comp time is legal if you work for the government (which has conveniently exempted itself from its own rules), so if you know someone who works in the government and gets comp time, that’s why. Also, if you happen to work in California, that state computes overtime by the day, so you’d need to get overtime any time you work more than eight hours a day, regardless of what happens the rest of the week. And last, what they did with your coworker was legal — they can adjust her hours later in the month to make up for the overtime they had to pay her earlier.

Okay, so what to do about this. I’d start with your manager and say something like this: “I’ve recently learned that we could get into trouble for the way we’re handling overtime. It turns out that now that we’re non-exempt, we’re actually required to pay overtime for any hours over 40 that we work in a week. We’re not allowed to pay it out in comp time later. Given the hours we have to work right now in order to make our events go smoothly, what’s the best way for us to proceed?”

Frankly, if the only reason your organization changed you over to non-exempt was in anticipation of the new overtime law that never happened, it might make sense for them to switch you back to exempt now (assuming that your work meets the legal qualifications for that), which would neutralize this whole issue. And if your boss seems stumped about what to do — or sounds like she’s going to tell you to get 50 hours of work accomplished in 40 hours — you might point that out (if you’d prefer that outcome).

But if your boss is going down the road of “just stick to 40 hours then,” be ready to walk her through what that will mean for your work — as in, “In 40 hours, I could do A, B, and C, but not D and E, and here’s why.” And if there’s any hint of “just put in the time it takes to do the work, but don’t log those hours,” be ready to say, “We could get in serious trouble for doing that, and it could really harm us. We could be ordered to pay back pay and penalties that would really add up.”

And if she won’t bend, it’s okay to say, “I think we need to loop in HR on this since the potential legal ramifications are serious.”

{ 247 comments… read them below }

  1. Longtime Listener, First time Caller

    Is their any recourse for the LW about collecting unpaid overtime wages?

    1. Enough

      Probably have to file a complaint with the appropriate state and or federal agencies. Which would cause an audit of the company and everyone getting back pay and the company paying a fine.

      1. Gaia

        Wage complaints aren’t just burning a bridge it is salting the land. They should be a last resort.

        1. Student

          No, salting the land is what happens when you steal money from your employees. The wage complaint that follows, and all the paperwork that accompany it, are called “just desserts”.

          1. Gaia

            That is a nice concept but in reality if you file a wage complaint rather than work it out with your company you’d better prepared to write off a future there or any decent reference.

            1. Bob

              Your approach would be retaliation on a whistleblower. Your actions would put an employer at more risk.

    2. Princess Consuela Banana Hammock

      Yes; OP can file a complaint with the Labor Commissioner. But what would be better, imo, is to try to get the organization to make good, first.

    3. Miles

      Since the time is not tracked, there is no way to determine how much is owed. That alone would stop any attempt to collect overtime pay op is entitled to, unless there is another reliable way to estimate the time worked each week.

      1. Shop Girl

        In NYS the DOL is complaint driven. Not keeping accurate records of your hourly employees is going to be all on the company. Paying back a little OT will be nothing compared to the fine. The DOL won’t stop at one thing. While they are there anything is fair game.

      2. Princess Consuela Banana Hammock

        It’s up to the company to provide proof of hours, though. Their failure to keep accurate records is also not legal.

        But OP should keep track of their overtime if they want to be able to collect it.

      3. SJW

        it is my experience that the DOL takes the employee’s estimate of hours worked in the absence of company records.

  2. Hills to Die on

    I recently worked for (and left, partially because of this) a small company that was doing this. People wanted 1.5x for overtime and I was the HR manager. They came to me and asked me about it, and I told them they absolutely had a right to ask for that pay and that I would support them in getting it. Then they asked if it would be a ‘whole, big deal’ to the boss and I said yes, she will make it A Thing and go on the warpath, but it’s your legal right to have it and I will back you. The employees decided every time to just accept whatever comp time or big goose egg the boss was willing to give. Yuck. So yuck. I was only there a few months before I couldn’t take any more of that place.

    1. SittingDuck

      This is exactly what is so gross about this situation.

      Either you accept things as they are (and let your company continue to break the law)

      Or you stir the pot -and probably end up getting your over time pay – but end up with a boss that has a HUGE resentment against you for ‘stirring the pot’ or possibly without a job when they find a way to let you go for an ‘unrelated’ reason to being the pot stirrer.

      Once you stir the pot you probably don’t have long at that job anymore because even if you aren’t let you, there will be resentment and your work life will probably not be very pleasant anymore……

      This is why so many companies can get away with nonsense like this!

  3. Murphy

    I also think it’s worrying that your company isn’t having you track the hours that you work. How does that work if you’re an hourly employee?

    1. LBK

      I’d guess she’s salaried non-exempt, meaning the company pays you the same amount whether you work less than or equal to 40 hours, so you only have to specifically track your hours when you work over 40 (which they should be doing in the OP’s case, but it’s not necessarily required to always have non-exempt workers track their hours).

      1. Murphy

        It says “hourly non-exempt” in the letter though, which is why I was surprised they weren’t tracking hours.

        1. LBK

          I saw that but assumed she might just be eliding the two, since it’s pretty common to assume everyone non-exempt is hourly. If they wouldn’t pay her less for working under 40 hours (if that ever happened), she’s salaried non-exempt.

    2. Bea

      It’s begging for an audit from BOLI. They require recordkeeping for this in most instances. They’ll get slapped with back pay and fines for improper records.

    3. Definitely Anon Here

      It’s easy enough to submit timesheets showing that you work 8 hours a day for 5 days a week, even if that doesn’t reflect your actual hours. Management “encourages” you to work 40 hours a week, so you submit a timesheet that matches that expectation so you don’t get in trouble. It’s easy to do and it keeps the “peace” in the office. (The very illegal, very demoralizing peace.)

      1. Lil Fidget

        Yep, our office tells us to stop counting after 40, because the additional hours aren’t billable against our funding sources anyway.

      2. Kj

        Yes. I did that for four years. My boss told me I could NEVER put down I worked more than 10 hours in a day (which I did ALL the time). I was pretty pissed by the time I left.

      3. OP

        Yes, this is pretty much the standard procedure. Like you said it “keeps the peace” and with recent layoffs nobody wants to rock the boat.

      4. Gaia

        I used to get so frustrated with my team for doing this. They’d pre fill in their timecards and then not adjust when they stayed late or came in early. I’ve never met a group of people so unwilling to get paid what they are owed.

        And we didn’t even care if they worked OT. It was always “approved” without even having to ask. I finally had to explain that this was an actual performance issue as it puts the company at risk. I just wanted to pay them!

    4. Stranger than fiction

      Yes, and I’m equally surprised that isn’t part of the law for non-exempt too.

      1. Natalie

        It is – employers are required to keep track of their employees’ time and pay them correctly. But I imagine its one of those violations that only ever gets found out as part of a bigger investigation into unpaid wages, since otherwise there’s no real way it would come to light.

  4. FundraisingNinja

    This kind of arrangement is so so common in nonprofits, but I have typically found larger national nonprofits to be better about it than small local ones. I’ve been in the fundraising field for about 15 years and started out in events. I’m curious if this is an issue that’s coming up across their chapters. I would assume so. So it’s likely something that HR will have to deal with at some point if they haven’t already been brought in by someone in a different chapter.

    1. thebluecastle

      I had a non profit tell me in an interview that any hours worked over 40 they asked that you consider to be “donated” to the non profit. yeah…. I wasn’t sure if that was legal or not but my spidey senses were tingling lol that does not seem like a good sign!

      1. e271828

        Sure, no problem, as long as they issue an itemized receipt for the donation (and would they have to pay the payroll taxes associated with the unpaid time, I wonder). Could make for an interesting tax return.

        1. Princess Consuela Banana Hammock

          Super not legal! And depending on the State, super super super not legal.

  5. Princess Consuela Banana Hammock

    These kind of wage claims drive me out of my mind, especially when nonprofits do this sort of thing. OP, it’s really not legal. The higher ups need to understand that the cost of transferring you all to non-exempt is abiding by the FLSA. It sounds like they made this move to avoid having to pay y’all more money (under the new rule), but they don’t want to even pay you what you’re owed under the old rule.

    If you go through all of Alison’s scripts and keep getting resistance, you may want to let them know that they could be on the hook for treble damages if they don’t get their act together. And let’s hope you’re not in California, where this would be an Even Bigger Deal.

    1. OP

      Thanks for your comment. You hit the nail on the head! I think they were desperately trying to avoid bumping those right under the threshold up (under that new rule) and thought this was a more cost effective option. It seems to have been one of the first of many cost cutting decisions in the past 18 months that have really effected moral.

    2. Shop Girl

      The thing is they might not be off the hook by making the staff exempt. You have to meet certain criteria to be exempt. A grocery store near me had to pay a multi-million dollar settlement for mis categorizing employees.

      1. Princess Consuela Banana Hammock

        Yes! Generally it’s easy to move people from exempt to non-exempt, which sounds like OP’s situation. Going the other way (non-exempt to exempt) is much more closely scrutinized because, unsurprisingly, employers often attempt to miscategorize their employees to avoid paying overtime.

        But there’s really no excuse for continually failing to pay non-exempt employees OT, especially when you know they’re not taking comp time and cannot take comp time during the same work week in which they earn that OT.

        1. Shop Girl

          And, at least in NY, it is the company defined work week not your pay period. If your week is Sunday-Saturday and you are paid bi-weekly you can’t work 48 in week one and 32 in week 2 to avoid OT in week 1. You could work 28 in week 2 to have your money equal out but the 8 hours in week one will be OT.
          It is also worth looking at what the majority of your time is spent going. If you are doing manual labor then in NY you have to be paid weekly. It’s also good to look into meal time rules for your state. Google your state, everyone should have done knowledgeable of the laws to prevent ev n inadvertent wage theft.

  6. nnn

    If I were advising OP’s management rather than OP, I’d tell them to change their work schedules so employees’ regularly scheduled 40-hour workweek covers the evenings and weekends when they need coverage.

    1. Lil Fidget

      The nonexempt status is especially hard on people in jobs like this, who have some periods that are insanely busy for a month straight, and then some downtime periods. I used to have a job like that (and was exempt) so I could put in my 60 hour weeks during crunch time and then work 30 hour weeks in the off-season. But this new law expressly prohibits that.

      1. Natalie

        I’m not sure what law you’re thinking of that would prohibit that? A non-exempt worker could absolutely work less during slow periods. If they were non-exempt hourly (as opposed to non-exempt salary, which is less common but does exist) they would be paid less for working less, but they would have been paid more during the times they were working OT and making time and a half. Now, that’s not everyone’s cup of tea and could make it harder to budget, but it’s certainly legal.

        1. Lil Fidget

          I may not understand all the aspects of this, but my understanding is that for non exempt workers like OP, comp time must be used within the same pay period in which it is accrued. You can’t hold it over for several months like I used to do. And nonprofits are rarely willing to pay OT, so that’s usually a nonstarter.

          1. Natalie

            Ah, I see what you’re saying – yes, if you wanted to work a shorter week and take comp time that had been earned months ago, that wouldn’t be allowed. But you can definitely work a shorter week and simply get paid less.

          2. Minerva McGonagall

            Right, you can’t use comp time to even out the pay.

            However, if you go over budget one month because of all the overtime pay, you can cut the hours the employee actually works in the next month in order to get your payroll budget back where you want it.

            1. Lil Fidget

              OHH, I see now what you were saying, Natalie! Thank you Minerva for explaining again. Yes, my org probably wouldn’t like this but I see how it could work. I wonder if something like this would be a solution for OP.

          3. LBK

            I used to have a job like that (and was exempt) so I could put in my 60 hour weeks during crunch time and then work 30 hour weeks in the off-season. But this new law expressly prohibits that.

            I think this is the part that’s confusing – there’s no new law that prevents that for exempt employees, but it’s always been illegal for non-exempt. That’s not new.

          4. Shop Girl

            Why would you not want to be paid what you are legally entitled too? If you are non exempt and work 60 hours in a work week you need to be paid OT. While you might like having the convenience of taking time in the future it eats away at the protections for people to be worked more than 40 hours and be coerced onto taking comp time in lieu of OT pay.

        2. Stranger than fiction

          A lot of full time hourly jobs aren’t like that, though. You’re still expected to work 40 hrs/wk regardless of how busy it is.

          1. Natalie

            Regardless, there’s no law dictating you have to do that, which was the part I was speaking to.

      2. Anon Today Anon Tomorrow

        It is, especially when an employer expects 40 hours a week during the downtime, and then 60+ hours during the busy times.

  7. Jay Bee

    I was in this position in my first job years ago. I had an honor system of “Comp Time” that my boss kept track of on a post it. I would use my comp hours and end up losing vacation days because I never took those, because I always had comp time. This was all instead of paying me overtime because it “wasn’t in the budget.”

    When I left and told HR this was happening in my exit interview, they told me it was illegal and I could actually sue them for the outstanding overtime. Which I obviously didn’t do because I had no paper trail or paperwork about the hours I worked, and who wants to be the person who burns a bridge of a major culturally renowned institution because you sued them?

    But yeah, very very illegal. And I learned my lesson at the time about standing up for myself. Either find the money in the budget, or you don’t get my help.

    1. Millennial Lawyer

      I don’t blame you for not wanting to sue, but I just want to point out that it is THEIR responsibility to have paperwork showing that they paid you properly.

    2. Bea

      If they didn’t have paperwork backing up your hours or if they were fudging timesheets, labor department will investigate them and take you on your word of the back pay owed. You don’t necessarily need rock solid paperwork on your end. This is why it’s important to use a time keeping system.

  8. Observer

    OP, when you talk to your manager and HR, you may want to point out that their exposure is huge. Because all it takes is ONE disgruntled employee (not *you* OF COURSE) or even FORMER employee to lodge a complaint with the DOL to launch an investigation.

    The “former” piece is really key here. While HR could convince themselves that current staff are “too loyal” (or too in need of their jobs) to do something so damaging to the organization, that doesn’t apply to former staff, even if they left on good terms.

    1. Doodle

      Yep. And the OP mentions layoffs above, which means there’s a whole pool of workers who might be a bit upset. It only takes one.

  9. Anon for this comment

    I work in a non-profit that does this. A coworker took up this issue last year and they HR person told her “This is what we have in place, we’ve always done it this way and you just need to make it work. Besides, what are you going to do? Report us? That is only going to end up costing you your job and a whole bunch of other people, too, because “Grandboss” would rather close the doors than pay overtime and back pay”. I know this is exactly what was said because I was in a conference room assembling packets and the coworker asked if they could use the phone to call HR, and it was a speaker phone. I offered to step out and they said no, it’s ok you can stay.

      1. Anon for this comment

        That coworker started job searching and 7 months later found new employment. They cited the overtime/comp time issue in their exit interview. They moved to another non-profit, took a 5k hit on salary but says it’s worth it.

    1. Adlib

      Next step should be reporting them. It’s also awful that they’re intimidating their employees this way.

      1. Specialk9

        Yeah, Anon I’d recommend you look, and when you find a new job, report them. People like that shouldn’t be allowed to be managers.

    2. Bea

      Oh so they were threatened. With a witness. And the two of you didn’t go to BOLI?! Why would you want to work for such utter scum? Don’t let anyone bully you into letting them break easy rules to nail their asses for. They don’t get to choose not to pay back wages. The grandbosd can’t liquidate a non profit and fold up into the night without going towards jail territory.

      1. Anon for this comment

        I don’t think HR knew I was in the room. My boss pretty much follows the rules on on overtime/comp time where I am concerned. Most of the exempt people use it to their advantage. Come late, leave early, say they have X amount of comp time (honor system yet they don’t always act honorably) and take weeks off. They make sure their events/programs, etc. are covered, but they really do take so much time off. So far the business is strong, we grow steadily every year and I guess everyone just accepts it.

        1. Bea

          Vile. Nobody has to know that they’re on speaker and multiple people are listening to lodge an investigation from labor and industries.

          This is like every scummy owner who takes an extra pound of flesh from others because people turn a blind eye to illegal unethical behavior that they’re aware of. Filthy blood money for all I’m concerned.

      2. (Mr.) Cajun2core

        She may not have reported them because she did not want people to lose their jobs. HR stated that
        Grandboss would close the doors (implying laying people off) rather than paying overtime. I can’t say I blame her but I would also make sure that everyone at the workplace knew this so that they could start looking for other jobs.

    3. Princess Consuela Banana Hammock

      This is vile, and this is exactly the kind of organization that should be audited. Threatening people’s jobs is even nastier.

    4. Gazebo Slayer

      “Grandboss would rather close the doors than pay overtime and back pay”

      W. T. F.

      So he’d destroy his own business out of pure spite rather than give people what they’re legally owed (which I highly doubt would be a sum that would tank the company). Disgusting and absurdly juvenile (“You can’t tell me what to do, big bad gubmint, you’re not the boss of me!!!1”)

      I bet he’s the kind of chucklehead who talks about how he’s going to “go Galt.”

    5. Safetykats

      The thing is, the outcome of the investigation is likely to be a court order to pay the back wages regardless – so they might not have the option to shut down the company so as not to pay. I’ve seen companies go bankrupt paying back overtime – and frankly, good riddance. The court will take it out of any assets that are left.

    6. Someone

      Provided it was allowed in that state, I’d be tempted to record a conversation about that.
      And then sue using that as proof. Would burn a hell of a lot of bridges, but the wrongness of “not paying employees what they actually earned” is so… so…

      …it makes me so furious!

  10. Emi.

    Since “conveniently exempted itself from its own rules” sounds so negative, I’d like to point out that the government comptime thing has real benefits for the employees! I personally really like being able to take time off without drawing down my annual leave, which I’m hoarding to make up for not having any maternity leave.

    This doesn’t sound as positive as I thought it would, hm.

    1. taco

      I work for a state university and I also love comp time! Taking extra time as overtime wouldn’t bump my paycheck up very much, but knowing I have extra vacation time is really nice!

    2. Ask a Manager Post author

      To be clear, I think making it legal to give people the option to do this is fine! The problem is holding everyone to one standard and the rules-setters to a different one.

      1. Gaia

        It is all well and good until your employer tells you that you have to want comp time or you will be out of a job.

        That is what I worry about if we legalized comp time for non-exempt employees: employees would want the OT pay but be pressured into accepting comp time instead.

      2. Gazebo Slayer

        Yeah, the double standard is hypocritical BS that undermines the government’s ability to enforce the regulations on others that it won’t enforce on itself. “Do as I say, not as I do” doesn’t set a good example.

    3. Former government worker

      It has real benefits for *some* employees. When I worked for the government – firstly, they didn’t tell me the default is that you are supposed to be paid overtime unless you specifically request comp time. My supervisors never mentioned overtime pay, ever. I was entry level grade, barely making ends meet. I would have much rather had overtime pay. Instead I had weeks of comp and vacation time which I felt like I couldn’t use because I couldn’t afford to travel anywhere.

      When I finally realized I should be getting overtime first (in the fine print of an HR memo about something else) I was so angry. After that, I would always email my supervisor to say I was happy to stay late (to help colleagues – as I worked in a department that had a lot of evening events we were all supposed to take turns working) with the understanding I wanted overtime rather than comp time. Not surprisingly, they no longer needed my help when it would cost them money. Then during my annual evaluation I was told I wasn’t a team player because I never helped out in the evenings. (Even though I had email proof of them saying they didn’t need my help.)

      I wish I would have filed a complaint with the DOL when I left.

      1. current government worker

        It absolutely doesn’t help you out at the time, but it does preserve AL so you can get *that* paid out when you leave. So having more comp time means more money in your last paycheck.

        And, yeah, that’s at 1x, not 1.5x… but comp time does get paid out eventually, although it’s secondhand.

    4. LBK

      I think it’s a great option for employers that let their people actually use their vacation time, but we hear way too many stories here about people who can’t even take all the vacation time they’re already allotted. I’d only be on board with opening this up beyond government employees if there were requirements around cashing it out as if it had been paid as overtime, whether it’s at the employee’s discretion, at the end of each year, or even just when the employee leaves.

    5. Brownie

      Yeah, I was excited about getting comp time for my government job when I have to work more than 40 hours to meet a deadline or deal with a production issue. So much better than my private sector job, right? Bank up time and then take an extra long vacation or a Friday off here and there!

      Then my new boss informed us that comp time up to 4 hours would be a one for one trade while comp time of 4 or more hours above the 40 is calculated at one hour work = 30 minutes comp time. Oh, and the comp time must be taken within the pay period, so if it’s work at the end of the two week pay period then I can’t take any comp time to make up for it. All in all I’ve probably got 12 hours of comp time this year that’s gone up in smoke because of the rules around using it. And this policy will change as soon as we get a different boss. The old-timers are rolling their eyes and doing whatever they feel like at this point because no one is going to tell them that working a production issue that’s thorny enough to require more than 4 hours of work is worth less in comp time than a 2 hour issue.

      1. Sue Wilson

        Whoa, that’s still illegal in the US. just because the government can give comp time, doesn’t mean that comp time can be less than 1 to 1 or that they don’t have to pay you out at overtime if you don’t take it (as long as it’s within 26 pay periods).

        1. LQ

          Yeah we get 1.5 when we get comp time. So if I work 4 extra hours of work, I get 6 hours of time off.

        2. Brownie

          At this point I’m chalking it up to utter business cluelessness on the part of the well-meaning managers/higher-ups who are trying to get us some kind of compensation for having to work more than 40 hours when the bit of government I work for says “You’re salaried, that means you work until the work is done but your timecards will always say only 40 hours” (literally, our time sheet software doesn’t let us enter more than 40 hours per week). It doesn’t help that the bit of the gov that I work for, while part of the DOE, is actually managed (via contract) by non-government companies, so everything gets confused with what’s actually legal. It’s a government sandwich with a (single if we’re lucky) private company in the middle.

          I’m siding with the old-timers at this point and taking unofficial comp time of 1 to 1 through long lunches, not taking time off for personal appointments, and other nickle & dime tactics to even things up the way my managers have verbally said it should work (versus the 1=0.5 written policy). We’re about due for another contract change anyways, so this will all change again by September when the next company starts managing.

    6. LQ

      I love having the comp time option. I had a huge project last year that left me pulling my hair out. At one point I told my boss I didn’t want OT anymore, I wanted time off. I wanted comp time once it was over. He was very happy to let me switch (he would have happily let me continue getting OT too), and then had me put it on the schedule so I actually took it off. (I took an extra 4 days off later in the month here and there and it was really nice, I had enough vacation time and I didn’t even have anything big to spend it on, but knowing that those days were basically work days returned to me felt really good.)

      1. zora

        Well, you could take the overtime pay and bank it yourself, and then take the time off unpaid later. You would still come out ahead, but you would have been allowed to choose it yourself. That would be the ethical way for employers to handle it, rather than getting away with paying people less for working more.

    7. soon 2be former fed

      US Fed here. My agency lost a suit brought by our union regarding improperly administered/comp time in lieu of overtime. There was a substantial payout to affected employees. Don’t know about state and local governments, but the feds are not exempt from wage and hour laws.

  11. Florida

    They can’t really change you from exempt to non-exempt unless they change your job. The company doesn’t get to decide willy nilly that we want this person to be exempt and this person to be non-exempt. It is based on the level of your job, which is measured by job duties and decision-making authority. The company doesn’t get to decide that the receptionist is exempt and the CEO is non-exempt. The law says that based on the job duties the receptionist is non-exempt and the CEO is exempt.
    There might be a few positions where it is pretty borderline, so the company has to make a judgement call. But to change an entire department back and forth then back again (without changing your duties) doesn’t make any sense (unless all of you are at the same level which happens to be right at that borderline level.)

    1. Natalie

      I believe you have that backwards. Anyone can be classified as non-exempt (that is, covered by the FLSA). If you want to pay all of your workers time and a half for overtime, the government isn’t going to stop you.

      There are specific requirements if you want to treat any of your workers as exempt from the law.

      1. Florida

        Oops, you’re right. My main point was just that you can’t decide willy nilly – it’s based on your job description.

    2. Enough

      They were exempt to begin with and rather than give them raises to go over the salary minimum under the proposed changes they went to hourly non-exempt. While going back may show that some positions truly are non-exempt (if they do it right) they will reduce their current liability.

      1. paul

        I’d wonder if they were correctly classified though; my employer used to misclassify a *lot* of us, including myself.

      2. LBK

        Yeah, the calculation was supposed to be that if you were going to end up owing them more overtime than the difference between their current salary and the new $47k minimum, just bump them up to the minimum. Otherwise it’s cheap to convert to non-exempt and pay the overtime.

        Since the law didn’t go into effect, the company doesn’t really lose anything by flipping them back to exempt, aside from pissing people off who thought they were going to start getting overtime (but they’re not getting it now anyway, so I guess same diff?).

  12. Lil Fidget

    This is something that’s very common in my org as well, I’m sorry to say. And we are a big, national nonprofit that should know better. As OP describes, it wasn’t an issue before we ushered in the new classifications ahead of the supposed overtime laws that never passed. We kept the policy in place anyway, but now we just flout it. The comapny just expects the junior level employees to finish in 40 hours, but the frontline managers don’t get any guidance or support in how to actually make this happen – it’s not like anybody got new staff when the change came, just that some of the staff were suddenly restricted. Typically the junior colleagues just don’t track their hours accurately – and it’s all kind of nudge-nudge, wink-wink. It sucks. I’m not sure if it’s much better than when I was their age, making what they make now and classified except, so I could be worked to the bone for peanuts.

    1. Kj

      That was true at my previous non-profit job. We were expected to complete our work no matter what BUT we weren’t allowed overtime so the nudge-and-wink routine was real. I hated it and am glad to be out. It is a burden that is placed on low-level, young workers more than on others, and we are less aware of our rights due to our age and inexperience. I had no clue HOW illegal some stuff was until I had been there for a little while. Oh, and HR had to know. No way for them NOT to.

      1. Gazebo Slayer

        Not just at nonprofits. I had a nonexempt job at a for-profit company where I was told that if i didn’t make quota for the day, I had to clock out and keep working until I did.

    2. AnotherLibrarian

      This is a big issue and it does impact younger workers, more than older. I see it a lot in the arts with illegal internships, but also with unpaid overtime. It is one of the reasons I no longer work with arts organizations. I hated seeing young people so desperate to work in the field being taken such horrible advantage of.

    3. sange

      true for my small nonprofit too! Our entry-level colleagues do get either comp time or overtime, depending on the week (really busy weeks overtime, less busy weeks comp time), but those of us over the salary threshold…it depends on your department. Some departments have an internal comp time policy left over from a prior administration here, others have kind of a wink-nudge flex time situation, and others – mine – have a VP that believes the 50+ hours are par for the course, and don’t accept a manager+ role if you aren’t willing to do nights and weekends.

  13. TiaMia

    The over 8 hours in one day rule is in place in Alaska as well. Can be tricky to manage schedules within it during our events, too, especially with travel.

    1. Lil Fidget

      Travel is what kills us too. And it’s hard because that means we have to push more travel onto the exempt employees like me. I doubled the amount of time I spend on the road when we made the switch, because my junior colleagues couldn’t do it any more. It’s a loss for them too, as the travel parts of the job are usually more interesting (at least in moderation) and they get stuck with more admin as a result. It’s also a loss for me because I didn’t get any more money than I ever did, and now I’m spending more nights and weekends away from home.

      1. WellRed

        I hope your company at least pays for your meals when traveling. Its not much, but saves a bit on groceries? I an in work travel this week, get to eat out nicely and didnt have to grocery shop or fill gas tank.

        1. Nonprofit pro

          I don’t know about Lil Fidget, but where I work I only get $36 a day for meals. It’s based on time I’m travelling so it often works out to less than that if I get home before 8pm or leave after 10am. Also only kicks in if I’m overnighting somewhere. If I have an all day work trip with no scheduled meals, I don’t get any sort of compensation for having to buy meals out.

  14. Overworked and Underpaid

    I work in a non-profit like this. It had been done for years and was never brought up as an issue because the staff was able to use the flex time weekly and freely. When I came in, I was told I couldn’t use my comp time as freely because I needed to be in the office more since I was a “llama organizer” and not a “llama wrangler” (even though me and the wrangler were on the same level and both non-exempt).

    I fought back and am finally getting back-pay as well as overtime going forward. And this was all done without an HR department. It can be done.

  15. Lily in NYC

    I was forced to work comp time instead of overtime a few years ago – for once I did the right thing and asked HR to email the new rules to me. I made sure to save that email and waited for the right moment to spring it on the powers that be. I used a bunch of comp time and then played dumb when we hired a new HR director and asked her if it was allowed (knowing full well that it wasn’t). She blew a gasket and they ended up paying me a few thousand in back overtime. The best part was that I had already taken a bunch of comp time so it was win win for me.

    1. OklahomaSpeaks

      Good for you! A few THOUSAND dollars in backpay? What was the time frame if you don’t mind me asking

      1. Lily in NYC

        Sure, it was a 4-month time period and they paid me $8,000. I used to make about 30K a year in overtime back then, boy do I miss that!

    2. beanie beans

      Oooh, getting something in writing from the OPs HR department would be powerful. Or from the manager for that matter.

      1. Lily in NYC

        I still have that email! She was kind of a rogue HR rep – our entire HR team used to be shady as hell but we have since replaced every single person in the department.

        1. Just Jess

          *claps again*

          Qualifications for HR Manager are like “I have a BA in Religious Studies,” or “I have a BA in English,” or “I know the organization well and I really like drama-I mean people.”

    3. Bea

      This pleases me. You played the shady fools and then thankfully got a real HR director.

      This reminds me of all the times I’ve walked in and had to clean up someone’s mess. Thankfully never to the tune of poor employee treatment though, I don’t know that I have the stomach for that.

  16. CmdrShepard4ever

    It is kind of funny, I have a similar problem but in the reverse. I work for a company based out of California with 3 offices in other states. Since California overtime is calculated by the day after 8 hours, everyone else in the other states has to adhere to this policy. I don’t like that, the state I work in calculates overtime on a weekly basis over 40 hours. There are weeks where I would much rather come in late or leave early one day for an appointment and then just work extra hours the rest of the week, but due to the policy I am not able to do that. In theory it seems like a good idea trying to keep everyone under a consistent policy, but I would much rather have more schedule flexibility.

    1. SoCalHR

      In California there is a rule to allow “Make Up Time” at the request of the employee (not the mandate of the employer) that would allow you the flexibility you are talking about (i.e. doctor’s appts). However, my understanding is employers don’t have to allow it. But it may be that your CA office isn’t aware of it. Could be something to suggest (from an HR standpoint, it can get a little crazy to administer, but its nice for employees)

    2. krysb

      That’s weird, because they don’t have to do that. They only have to adhere to the rules in the state where the workers actually work. Like, if the company is in California, but your office is in Tennessee, your office has to follow Tennessee rules, while the California office has to follow California rules.

      1. McWhadden

        Yeah but it’s annoying to have different rules for various people. So, if the California rules don’t break the other state’s rules then it’s easier just to keep everything consistent and go by those.

      2. Ainomiaka

        This is true, but a lot of companies would rather have everyone follow the same rules so that the risks of missing someone are lower.

      3. Natalie

        Aside from the consistency thing, they could just think it’s the right thing to do. I had an old employer who paid time and a half above and beyond the legal requirement (by factoring in vacation and holiday pay). It was a slight pain doing their payroll, but given that a lot of the employees in question were working 10+ hour days it seemed like fair compensation to me.

      1. CmdrShepard4ever

        My company will approve of overtime only if it is absolutely necessary but they do not usually approve overtime. Last year I logged a total of 4 hours for the year. I highly approve of protective employee laws, what I do not like is overly rigid laws. Now that I know about the make up time request allowance I think the law is more reasonable. Unfortunately my employer does not allow us to use the make up time request, that I do not like.

    3. Bea

      It’s easier to have a standardized procedure and stick to the state with the most rigorous ruling. I’m sorry it’s a pain for you, I feel for that but as someone who handles HR, if we had operations in other states it sucks to have different rules at different branches. It can lead to costly errors.b

  17. Lil Fidget

    Ultimately, as far as I can tell, the problem is that organizations that reclassified workers from exempt to non-exempt didn’t hire any more workers and didn’t budget for any overtime, so capacity did drop. Now it’s easy to hold the work product hostage, as OP is finding – they just tell you you *have* to do it in 40 hours, and here’s the terrible consequence if you can’t meet your goal. The result is usually that the overtime work goes underground – what else is the employee supposed to do?

    1. Sapphire

      This was OldJob’s policy too. Suddenly when everyone got reclassified as non-exempt, the powers that be were much more concerned about our work-life balance than when we were exempt. And of course, unauthorized overtime could be punished by firing.

      1. Pomona Sprout

        *ginormous eteroll for employers that do thiskind of thing*

        Actually, when they went from calling laying poeople off “downsizing” to calling it “rightsizing,” I began to suspect that there are a lot of employers who think that:

        1) employees are magical beings who can accomplish any task in any amount of time, no matter how small , and if they don’t, they must be slacking;
        and
        2) all employees must be happy to put their employer’s needs ahead of their own and those of their families, and if they’re not, screw them.

        Reading the comments in this post has convinced me my suspicions are true, and it’s hella depressing.

        [For the hypernole-challenged, please note that I said “a lot of” employers, not “all”. I know ALL of them are not like that, and I’ve even worked for some that weren’t.]

  18. DCer

    There may be one exception that I haven’t seen mentioned above. I am a member of a union and my union contract includes a provision of accepting comp time instead of overtime. The provision of our contract state that after 6 months, we can demand that the company pay us for that comp time instead of taking it as time off. And that time rolls over indefinitely – so it can’t expire like vacation. If we leave the company, it should all be paid out.

    That’s clearly not the case here. But just wanted to add if someone was thinking it’s never acceptable to bank comp time for the future.

    1. Ask a Manager Post author

      This is interesting — is there an exception to the law that allows unions to agree to this? Normally you can’t waive the overtime requirement, even with employees’ consent. (Unless you’re public employees?)

      1. Meg Murry

        I worked for a union that had this kind of rule, and I think it was considered ok because:
        1. Overtime and comp time were both accrued at 1.5x after 40 hours
        2. The employee got to determine if they wanted overtime pay or comp pay, not the management.
        3. You could ask for comp time to be paid out at any time, and it all was paid out at the end of the fiscal year.
        4. You could also ask for vacation or sick time to be paid out instead of take it.

        So basically, it gave the *employee* extra flexibility to bank comp time if they wanted to, but since you could ask for it to be paid out at any time it was really more like banked OT. If they started to change the rules and not pay out when asked that could have gotten them a valid complaint with the DOL, but no one was complaining about being given *more* flexibility than the law.

        1. Ask a Manager Post author

          But that’s not legal in non-union environments, even if 1-4 are all present. I don’t think there’s a union exemption, but I could be wrong about that.

      2. Lindsay J

        For some there is, in the case of railway and aviation employees. (Not sure about comp time specifically, but that’s what allows flight attendants and pilots to be paid from door close to door open on the plane, even though there are tasks they must complete before and after the flight.) But they’re specifically covered under one of the Railway acts not a more general employment law.

    2. knitcrazybooknut

      I think each union agreement handles this differently as well. We have a union that cashes out everything over a certain number of hours (I think it’s 64) on an annual basis. And our comp time cashes out upon leaving the company as well.

      We also allow the employee to choose between comp time and overtime, but it has to be employee’s choice; the manager is not allowed to influence the employee’s decision.

      We’re a state employer – maybe that makes a difference.

  19. OT is confusing

    Not all overtime has to be paid at 1.5 times the hourly rate. You can have a policy that “time paid but not worked” does not count toward overtime calculation. For example, if a non-exempt employee worked 45 hours in one week, but 8 hours of the time was actually PTO, then the 5 hours of OT could be paid at the regular hourly rate. If they worked 50 hours – same situation, then 8 hours of OT would be at the regular rate, and 2 hours at 1.5 times the hourly rate.

    Also, if the non-exempt worker is salaried and has a fluctuating 40 hour work week (as opposed to a fixed schedule), then there is a different formula where you divide the total hours worked by the weekly salary then take 1.5 for the OT. I believe this is different from the way the OT rate is calculate for a fixed schedule, salaried, non-exempt position.

      1. OT is confusin

        You have to count PTO, though. If you don’t count PTO and use my example, they would only be physically working 37 hours and not be eligible for any overtime. But they deserve to be paid for 45 hours total: 8 hours of PTO plus 37 hours worked. Those 5 extra hours have to be paid for — as overtime. But not necessarily at time and a half.

        Not counting PTO or paid holidays towards the 40 hour workweek thresh hold doesn’t make sense. Otherwise the employer could get an extra 8+ hours work for free. (e.g. Monday – PTO 8 hours, then still work 40 hours Tues. – Frid.)

        (I’m talking about salaried, non-exempt specifically.)

          1. OT is confusing

            The point of my original comment was that overtime is not automatically paid out at 1.5 the employee’s hourly rate, as was stated in your answer to the OP.

            1. Ask a Manager Post author

              Hours worked over 40 do indeed need to be paid at time and a half. You’re making a distinction for PTO hours, but I’m talking about hours actually worked (which is what the law talks about).

              You’re right that the fluctuating 40 hour work week formula is a different thing.

        1. Lil Fidget

          In my office, PTO is deducted before you can start counting overtime. So if somebody is sick for a day or takes vacation, they don’t start getting comp time until that’s gone.

        2. Al

          Disagree here, as OT is calculated for hours worked.

          If you worked 37 h M-Th, and took F off, then you only need to use 3 hours (not 8) of PTO to make 40 hours. You don’t get to claim OT because you regularly work 8 hours on Fri. You didn’t in fact work that day.

          1. OT is Confusing

            But if you use 8 hours of PTO (or have a paid holiday on a Monday) then work 37 hours during other four days you still need to be paid for 45 hours. You can’t take a day (e.g. 8 hours) of PTO but only get paid for 3 hours of it because your employer wants to keep you at 40 hours per week. Hence my original point — you are getting paid for 45 hours (over time, meaning over 40 hours) but none of it will be paid at time and a half.

            1. Jessie the First (or second)

              Overtime for the FLSA means actual hours worked, so what you are describing is not overtime under the FLSA. When Alison talks about overtime, she’s talking about it as the FLSA defines it – actual hours worked (not hours paid out).

              You’re talking about hours paid out and hours of service under benefit plans…which is not what overtime means. Hence the different answer from what you were expecting, I think.

    1. Bea

      Non-Exempt salaried isn’t a solid thing, salary goes along with being exempt from OT.

      If you make $400 a week “salaried”, that’s $10 an hour at 40hrs. But sometimes they’ll be okay with you working 39 and not dock pay. However if you work 41 hours, you’ll be paid $15 for the OT hour because it’s 1.5x.

      What can be confusing is how pay weeks are done by a company. I’ve seen some weird weeks “Friday-Thursday” instead of Sunday-Saturday or Monday-Sunday kind of stuff.

      1. Natalie

        You can have non-exempt salaried, it’s just not very common – if you pay Jane $1000 a week whether she works 20 hours or 40 hours, that’s a salary. But if she works 41 hours, you have to then pay her OT at whatever her time and a half rate is.

      2. OT is confusing

        Yeah, salaried non-exempt is weird. We had to reclassify a few positions due to our state minimum thresholds increasing. Rather than reduce people’s pay we kept them salaried, but non-exempt. So even if they work less than 40 hours per week, they still get their base salary. If/when the people in those positions resign, I will advocate that the positions become hourly, non-exempt.

      3. doreen

        Workweeks are usually set to minimize overtime. I know I’ve seen workweeks for a 9/80 schedule ( you work 9 hrs Mon – Thurs, 8 hrs every other Friday and have the second Friday off) that start at noon on Friday. That way, you have 40 hours in each workweek

      4. Ramblin' Ma'am

        It very much is a thing! I’m classified as salaried non-exempt, as are most of the people in my office below the supervisor level.

    2. Gaia

      OT is on hours worked, not paid. If you work more than 40 hours it has to be paid as OT if you qualify for OT. Non-worked but paid hours are not legally required for OT. I’ve never heard of a company using non-worked hours in the OT calculation.

      1. doreen

        They don’t legally have to , but every place I’ve worked overtime has (one employer did not include unscheduled sick leave) . Almost certainly because the unions negotiated it , and it’s just easier to have one policy about which hours count rather than different policies depending on whether an employee is represented by a union or not.

  20. QuiteContrary

    Oh wow, I just learned from this that my old company was handling this illegally. I didn’t realize the comp time had to be done in the same week. We were allowed to bank it and use it later.

    Part of me wishes I still worked there so I could burn them. But mostly I’m glad I don’t work there any more! (for many reasons)

    1. Lil Fidget

      I think this is only the case for workers who are classified as non-exempt. Exempt workers can be told anything the employer wants, including that the company doesn’t offer comp time at all.

  21. What's with today, today?

    I’ve often wondered about these scripts. My boss would probably stop what he was doing, look at me and say “Are you telling me you that you are planning on turning us in?” (For clarity, we aren’t doing anything wrong, but that would likely be his response and he owns the place). I’m genuinely curious what happens next if this is the type of response given, Allison?

    1. Ask a Manager Post author

      You’d say, “I’m speaking up because I assume the company will want to fix this now that they realize it. Because we shouldn’t rely on people’s good will not to report it — all it would take is one person, which could be someone who doesn’t even work here anymore or someone who’s disgruntled for other reasons.”

    2. Bea

      “I’m telling you that this is unlawful behavior that could be reported or uncovered in an audit. It’s also unlawful to retaliate against a person who reports unlawful behavior.”

      No smart business owner claps back at you when you bring up unlawful behavior because they know damn well it’s a warning shot and to either fix it or know the person will report you.

      Most business owners are truly ignorant of laws or know when to play ignorant. Unless they’re unaware that the labor department exists to bleed them dry for not covering their butts with properly educated staff.

      1. What's with today, today?

        Wow, Bea. That was harsh. I asked the question b/c it went the other way for my (properly educated) Dad. My Dad, a PhD with thirty plus years of experience in Higher Ed., did this very thing recently with a Title 9 violation at a very large state university. He wasn’t fired immediately, but was told a week later was told his contract wouldn’t be renewed. He filed a complaint that was somewhat successful, but he’s been out of work since. It’s been a year, and he’s been told several times by prospective employers that the University bad mouths him. He doesn’t utilize anyone there as a reference, but the his former VP at the school inevitably gets a call.

        1. bonkerballs

          Since as you say the VP inevitably gets a call, I would make sure to tell interviewers what they’re going to hear from him up front that way it doesn’t come as a surprise and they have context to weigh the VPs comments against.

    3. Observer

      Pretty much what Allison says.

      I would probably put it as “No. But we don’t know who might. It doesn’t even have to be someone who works here. But once the DOL starts looking, they’ll figure it out and then we’re in REAL trouble.”

    4. Just Saying...

      You could always respond with “Do I need to do that in order to get paid what is owed or can we work this out so that neither of us has to do anything drastic?”

  22. Recovering journalist

    Question on comp time: one of the newspapers I worked for tried to skirt this law by calling such time off “fairness days.” As newspaper reporters, we often were unexpectedly in the position of working long hours/extra days without warning. We are all exempt employees. Nobody kept a 1-1 log of extra hours and fairness days, because it wasn’t realistically a 40-hour a week job. But they recognized our low pay and unpredictable schedules by granting “fairness” time off when you asked for it.

    Was that an effective way to skirt legal concerns? It always seemed suspect, but I appreciated the time.

    1. Bea

      You’re exempt so comp time is legal and not an issue how they handle it. You’re not legally entitled to comp time for exempt positions, it’s a perk.

      It’s only if you’re hourly.

  23. Jo

    I see this a lot with questions about legal violations, and I have to be honest, I’m always skeptical of the suggestions here. I feel like this conversation can really only go one way:

    Employee: Hi Boss. So, I found out that we need to be paying people overtime if they go above 40 hours a week. The way we’re doing it now could get us in serious trouble. What should we do?

    Boss: I don’t see how we can get in trouble if the government never finds out about it. How are they going to know that we’re doing it this way unless someone reports us?

    Employee: …but we really can’t be violating the law like that, right? We don’t want to take that risk.

    Boss: There’s really no risk unless someone brings it to their attention. (Subtext: “I know you’re sort of threatening me here, and I’m letting you know that I know, and if I end up getting reported, I’m going to know it was you.”)

    Employee: I’m going to check with HR about this. I’m really sure this isn’t allowed, and I don’t want us to be penalized down the line.

    Boss: If you go to HR, I will fire you.

    Employee: That’s also illegal. You can’t retaliate against me for whistleblowing something illegal.

    Boss: Fine, but know that your boss now hates you.

    Either way, it kind of feels like a lose-lose situation. Is the likelihood that the boss would toe the line and be able to treat them fairly that good that the employee can now feel okay continuing to work for him/her?

    1. Ask a Manager Post author

      I answered something similar to this just a few comments above.

      Are there some evil-villain type bosses who will respond that way? Sure. But most bosses, if your tone is collaborative and conveys “I’m concerned we’ll get in trouble over this,” aren’t going to respond this way. They might be annoyed, yes, and they might see you as a stickler for rules, but they’re not going to hate you forever. A boss who does is a boss who there will be 500 other reasons to stop working for.

    2. Rusty Shackelford

      As Alison said a couple of times, a good response is “All it takes is one disgruntled employee – or FORMER employee – to report it.”

      1. Jo

        Guys, that response was given 2 minutes before I posted this. I was asking this while Alison answered. The wires got crossed. Sorry for asking something that had already been answered, but that happens sometimes here.

        If that wasn’t an annoyed “GOD SHE ALREADY ANSWERED THIS,” then apologies, but that’s kinda how it read.

    3. Bea

      This mentality and fear is why this behavior persists. Sometimes you have to stand up to a bully. Get fired. And take them down by getting the regulatory bodies involved.

      Then you no longer work for a scumbag. Unless this is the wild wild west and he’s the oil baron who owns the town, there’s no reason for laying down and taking it.

      1. Jo

        Apologies, that response must’ve been answered while I was typing mine out.

        And Bea, very, very few people have the financial freedom and security to be able to do that. If you can, by all means, go for it, but sacrificing livelihood is not something most people can just do on a whim. Especially if you have other people depending on you.

        1. Bea

          Oh please, then by all means stay at the bottom and work for the scumbags. Even my lowest boss didn’t break employment laws.

          You find a new job before you quit.

          1. Andy

            ok, this is a really harsh reply. Jo is right, sometimes the balance is that other people, wee smalls, are depending on you and you just do what you need to do to pay the bills.

          2. knitcrazybooknut

            Some of my nicest bosses broke employment laws. They didn’t know any better, or they did and they thought because their intentions were good, it was okay. But sometimes I didn’t have the facts, or I didn’t feel confident enough to bring it up. Even when I was leaving to get another job, I didn’t say anything. Just because someone doesn’t want to go head to head with their boss doesn’t mean they’re staying at the bottom, laying down and taking it. That’s not a very kind assessment.

          3. Famous Blue Raincoat

            Unfortunately there are a lot of bosses out there who do break employment laws; and if you work for one of those, it’s usually because you don’t have a lot of other options. Even if you’re actively trying to get out of that environment it can be tough in the meantime to work for someone who blatantly ignores employment laws and threatens anyone who questions it.

            A former employer (small business owner) of mine had a ton of potential violations, ranging from failing to pay some employees minimum wage to creating what could easily pass as a hostile work environment due to frequent sexual harassment and bullying behavior based on sexual orientation and race. Then there was the time that everyone’s insurance got canceled without notice so he could afford to finish his basement, and we didn’t find out til months later that we were uninsured. We were told that overtime and worker’s comp didn’t exist; he fired people for questionable reasons all the time; and when people filed for unemployment he disputed their claims and threatened to give them bad references unless they dropped the unemployment claims.

            All that said, I ended up working there for 10 years because I had been actively applying to other jobs and the economy sucked and I was fresh out of college and I had loans to pay off and needed a roof over my head and food in my belly and transportation and you get the picture.

            Thankfully I was able to finally escape that environment and boss by taking a temp to perm entry level role somewhere else–for a pay cut–and it ended up being the best decision of my life. But it’s not always as easy as “stand up to the jerk even if it means your job is on the line.” We’re not all in a position to do that.

          4. Observer

            Which is easier said than done.

            I agree that ideally people would hold people’s feet to the fire. But this kind of blame for the victims is ugly and does absolutely nothing to rectify some real injustices.

          5. Marthooh

            “…there’s no reason for laying down and taking it.”

            Except, you know, just lie there and take it long enough to find a new job. That’s a reason.

          6. Moon Over Egypt

            How delightful for you that life has worked out so beautifully that you have never had to have any concern about quitting a job! You must feel very lucky and very privileged to be in such a position. I’m happy for you.

            It would be lovely, though, if you opened your eyes to the experiences of others, and realised that many people are not in that incredibly fortunate state. Perhaps then your comments might be more helpful and less arrogant and rude.

  24. rldk

    Related question: I also work in fundraising at a non-profit that does this, but part of the shift to hourly non-exempt meant we all have an online punchcard system now and are expected to clock in and out each day.
    They similarly do not want us to ever get overtime, and any OT has to be pre-approved, but comp time in our case always has to be used within the two week pay period. I’ve observed, multiple times, that when I go over on hours (ranging from 2 or 3 hours to 8 hours over 40), HR actually goes back at the end of the pay period and alters my digital time card to even out each week to 40.
    This seems like time card fraud to me, but IANAL. I’m also (finally!) in my notice period, so it’s more a curiosity than pressing concern.

    1. Ask a Manager Post author

      Yeah, if they’re not paying you the overtime for that week, that’s illegal. It has to be used within the same work week, not pay period.

      (That said, they can define the work week as any seven-day period they want. They just can’t keep changing it to avoid paying overtime.)

      1. rldk

        When I brought this up in the style you recommend, with a sort of collective concern, the HR Director of all people told me this is just how it is, because they really can’t afford to pay overtime.
        I have a lot of respect for this organization’s mission, but this is just one of many instances of slime coming out of the cracks of bad management and bad practices.

        1. Ask a Manager Post author

          Yeah, it’s not magic — someone who’s determined to break the law may still continue breaking the law. But’s it’s a reasonable way to bring it up. At that point, you need to decide if you want to pursue it legally or not.

        2. paul

          Report them.

          I see this crap too often in the non profit world. I don’t know how common it is in for profits as I haven’t worked in for profits in a long time, but small non-profits 9and some larger ones)really skirt labor laws very closely and seem to flout them pretty often.

        3. Observer

          I might ask them if they could afford the costs of dealing with an audit and the penalties.

    2. Natalie

      The reason they’re doing that is that their comp time scheme doesn’t actually meet the requirements of the law. Comp time has to be used within the same *work week*, not the same pay period. They’re trying to hide the unpaid overtime. (Probably futilely, as I would imagine edits in a computerized time card system leave some kind of trace.)

      1. rldk

        Oh, I entirely understand the rationale. They just handle it so matter-of-factly that I’ve been unsure if it was actually violating the law – which it turns out it is!

    3. paul

      that’d be fraud.

      We do sometimes do a screwy version of comp time to even out payroll budget. The way it works is:

      Say I work 45 hours next week (start of the next pay period for us).

      The hours are tracked and clocked, correctly, and paid correctly.

      The week following, if possible, I’d take 7.5 hours off somewhere. That balances the payroll out, but I’m paid correctly for the overtime.

      1. Princess Consuela Banana Hammock

        Agreed—this is fraud and wage theft. Report them, report them, report them.

    4. OP

      Rldk, this sounds very similar to the system we use now. We have the capability to clock in and out but haven’t been instructed to do so, only enter our hours manually the end of the pay period. Since we are only one chapter in the larger organization, I wouldn’t be surprised if others are using the time clock feature.

      I do know any overtime gets flagged to HR and they will inquire with the manager about it, so it’s easier to enter your 40 hours, and no questions are asked.

      1. rldk

        We are also an independently-operating subset of a larger national organization. Reading your letter, I really thought it could be written by one of my coworkers, but our HR is in on it, and as I think I said upthread, they’re the ones manually adjusting our punchcards so that they even out to no OT for the pay period.
        It’s so hard to have this be a nonprofit that I legitimately believe in – I both want them to improve and don’t want them to have to waste all that money and time in fees and audits that would come with reporting.

        1. AnotherLibrarian

          I get that, but I’d urge you to report. It’s this sense of “I don’t want to hurt my organization I believe in” that allows these organizations to continue taking advantage of people.

      2. LBK

        That isn’t necessarily unusual – I think many places that aren’t shift work just have you fill out a timecard at the end of the week/pay period rather than clocking in/out, since it feels a little less paternalistic. But if they’re telling you to fill out a flat 40 hours rather than providing an accurate time card reflecting all your OT, that’s definitely not standard or legal.

    5. Observer

      These people are asking for trouble. These systems all keep an audit trail. If they ever get audited and the auditor is up to date on current technology, they will get blown out of the water. It’s going to be VERY difficult for them to claim ignorance when there is evidence that HR altered the time cards.

  25. Mrs. Vandertramp

    Some non-profits (although LW’s doesn’t sound like one) are NOT covered by the FLSA because they are not an “enterprise” as defined by the statue. This is a pretty narrow exception, so employees and mangers shouldn’t assume they can take another of it (in fact, consult a lawyer before you do) and there are still ways you can be individually covered by the FLSA even if your non-profit isn’t. And start laws might provide more protection. Just something to be aware of.

  26. Employment Lawyer

    You are absolutely entitled to OT, including back OT. If you were my client here in Mass. you would also be able to get triple damages.

    It does not matter whether OT was “authorized.” If you work hours, you need to get paid for those hours. Technically the company owes you a ton of OT, provided that you have been tracking it. Comp time is NOT an adequate substitute.

    If you want to leave, you probably have a valuable claim. If you want to stay, you should change the arrangement. In either case make sure to track all of your hours and make sure to submit them to your employer., and keep your own records. That way if something goes wrong you will have a fallback claim.

    1. Gaia

      This right here. Even if it is unauthorized it HAS to be paid. You can be penalized for working unauthorized OT, but you still are owed that money. No exceptions. Never.

  27. Gaia

    Fun fact: California is not alone in theri hours-per-day-OT requirement. In Oregon if you work in manufacturing (or your primarily workplace is a manufacturing facility and there are no architectural barriers between you and the manufacturing) there are daily hour limits before OT kicks in.

    This is fun for my company since we have Production onsite but half of our office isn’t in Production (they are in research) and whether or not there is a barrier is kind of subjective depending on what you consider a barrier…Sigh.

      1. Gaia

        That and to keep employees from being misclassified as admin staff when, in reality, they are manufacturing (real thing that happened).

  28. ladycrim

    My non-profit had a CEO who insisted all the non-exempt workers ‘flex’ their schedule when they had to work overtime, to keep our weekly total below 40 hrs/wk. (i.e.: If I worked two hours overtime one day, I was to come in one hour late for each of the next two days.) This isn’t something I minded having as an option, but the fact that we were told we HAD to do it instead of taking overtime angered a lot of people. It didn’t help that they were trying to gaslight us by claiming they had NEVER allowed overtime, even though it was in our union contract and we had all gotten paid without complaint plenty of times before. One extremely busy two-week period, I flexed my schedule as much as I could and still ended up with 5 hours of overtime. I got yelled at and basically accused of lying on my timecard (even though I could account for all of it).

    Thankfully, our next CEO reinstated overtime pay – she was appalled at how we had been treated – and the current CEO has continued in the same vein.

    1. bonkerballs

      I can see why you might not like it, but it’s a totally valid practice. I usually work Monday to Friday 9-5, but know on those few times a year we have an event that I have to make sure to flex my schedule. That’s not unusual at all.

      1. ladycrim

        Flexing at busy times I don’t mind. It was the fact that they insisted this was always how we’d done things (which was demonstrably untrue) and acted like we were trying to pull a fast one for wanting to be paid for overtime that they knew we had worked that upset us.

  29. JM60

    Californian here. I’m not a lawyer, but I’m pretty sure this is partly true and partly false:

    “Also, if you happen to work in California, that state computes overtime by the day rather than by the week”

    California requires overtime be calculated by the day and week. I believe that any time that meets the following criteria must be paid as OT:

    More than 8 hours in a single day
    More than 40 hours in a week
    Any time worked on the 7th worked day of the week.

    1. Jennifer Thneed

      You’re right. And then at some point, it slips to double-time. Maybe over 60 hours?

      I love California. I’m 2nd generation on my Mom’s side, and about 6th on my Dad’s. (Where 1st generation is the one who actually changed residences, and 2nd is the one who was born there.)

      1. Jennifer Thneed

        Ah, here we go: https://www.dir.ca.gov/dlse/faq_overtime.htm

        1. One and one-half times the employee’s regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and
        2. Double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
        (And there’s exceptions, of course.)

      2. DArcy

        It’s double time past 12 hours in one day. This is *huge* for EMTs because most ambulance companies run us in 12 hour shifts, and it’s typically 13-14 hours on duty because we can’t clock out in the middle of a call.

  30. Edea

    Ah, I have a burning question as long as we are discussing this! I hope someone knowledgable is still reading! And please let me know if this is too off-topic. My company has this policy that “any hours you work on a swap” don’t count towards daily or weekly overtime (which I understand the logic of or else you could pick up hours to the point you got overtime, but I can’t find this written down in a law anywhere). I’m regularly scheduled for 30 hours a week, but a few weeks ago I picked up enough shifts from coworkers that I worked about 64 hours total in the week.
    In addition to the coworkers’ I picked up, I worked 2 extra hours at the end of 2 shifts, for 4 hours total. The hours were mandatory – everyone was required to stay and no one went home on time. My company says the hours I worked “on a swap” don’t count towards my 40-hour overtime threshold. But since I worked well over 40 hours in the week, I should be getting paid overtime for the 4 extra hours, right? Where is it written that hours that you “pick up” don’t count towards the threshold?
    So to recap, I worked 30 of my own hours, 30 of my coworkers’, and 4 extra on top of that. I hope this isn’t too confusing.

      1. Edea

        Huh. Thanks. I’ve been confused about the laws for a while and I can’t believe no one has challenged it before.

        1. Edea

          Alison. I think I figured it out. I feel really silly for not knowing this, but my job falls under the Railway Labor Act so is exempt from federal overtime laws.

          My company DOES pay overtime… but I think this explains how they can follow their own rules. (Although I’m still convinced that I deserve to be paid my 4 recent extra hours, according to their rules!)

    1. Jennifer Thneed

      > which I understand the logic of or else you could pick up hours to the point you got overtime
      No, the logic is that the company would say “nobody can work over 40 hours a week, period”.

      > I should be getting paid overtime for the 4 extra hours, right
      It looks to me like you worked 64 hours in the week? You should be getting paid overtime for the extra 24 hours. NOT 4 hours.

      If they don’t want to pay OT, they have to not allow people to work OT. It really is as straightforward as that. The law says that even if your OT isn’t authorized by your manager, the company still has to pay you for it because it’s time you worked. Not paying that OT is wage theft. If your company doesn’t want to pay OT, they have to not allow people to work OT. Do a search on this: “DOL wage theft” — that should get you the Dept of Labor’s page on how to file a complaint.

      1. Edea

        Holy moly! If that is right I’ve missed out on so much money in my career!
        I guess a caveat here is that trading shifts is the only way some people are able to get time off. A lot of my coworkers work part time without any benefits. They regularly work, say, 48 hours one week in order to get 24 hours off the next week… they will not be happy if the company bans working more than 40 hours a week!

        My company is VERY on top of labor laws in other areas so I’ve always assumed they knew what they were doing…

      2. Edea

        I just discovered that my job is covered by the Railway Labor Act and exempt from federal overtime laws. I’m not sure how in all of my googling of overtime laws over the years I’ve never figured this out…

  31. Alex

    My organization operates this way. It is a globally recognized organization. They count on the fact that most people don’t know it is illegal. Even those who know it is illegal are too scared to push back, because they are worried as being viewed as not dedicated to the job or being greedy and not a team player.

    Management knows it is illegal, but they don’t care. I personally am not affected by the policy, but it makes me really angry. I want to do something about it but I can’t threaten to sue or anything because it does not affect me. I have tried quietly educating people about the law in hopes more people will realize it is illegal and push back as a group.

  32. I Didn’t Kill Kenny

    I initially read this backward – I thought OP said she changed from non exempt to exempt.
    If she were exempt, which doesn’t require OT to be paid, then I’d say nothing and take the comp time. Technically, exempt can work 80 hrs and not be compensated with time or money.
    I’m confused why they changed FROM exempt to non exempt. Am I missing something? But of course if she’s non exempt, she’s supposed to be paid for time worked, approved or not.

    1. B

      They changed because the minimum salary for exempt employees was supposed to be raised from $23,660 to $47,476 but then the law was blocked. So they preemptively reclassified their exempt employees to non-exempt so they wouldn’t have to raise their salaries to that $47,476 mark.

  33. She Who Must Be Obeyed

    I’d hate to be this manger when this hits the media–and we all know it will…”United Way pays CEO $10 million but won’t pay peons overtime” or “Susan G. Komen pays CEO $3 million but won’t pay overtime to workers” and so on (I’m using these as examples because their CEO salaries have been in the media in past years–and the United Way one was many years ago, so he probably makes much, much more by now). In fact, that would be a good way to solve the problem: Anonymously email a reporter. (Side note: CEO salary is one way I determine which charities I give to; if the CEO makes too much, I don’t give them money–United Way will never get a penny from me.)

    1. Just Jess

      If it’s a small non-profit then we’re probably talking under $200,000 for Exec Director salary. $130 -$170K is pretty common for non-profits under 200 people and in high cost of living areas at that.

      This isn’t at all a reason to be shady about overtime compensation, but I just want to be realistic about the salaries at small non-profits. Overtime compensation has to come from somewhere other than an Exec Director’s nonexistent multi-million dollar salary.

      Also, I think someone even said up the thread that bigger non-profits are much better at employment law compliance. Bigger non-profits 1) have more admin. resources, 2) are more likely to get negative media attention for poor practices, and 3) are more likely to pay their Exec Directors and CEOs according to performance.

  34. Your Tax Dollars at Work

    Love being a government worker. At one point I had NINE WEEKS of comp time banked because I worked so much overtime and my boss wouldn’t approve vacation. I’ve been whittling away at it with “sick” days here and there, but every time I check my timebank I get frustrated seeing the overtime I’ll never be paid for.

    1. Just Jess

      Won’t you get paid comp time when you leave? If you never leave, won’t you be able to add it on to your length of service and bump up your retirement date by nine + weeks?

      And, God forbid, if you have a major personal/family illness and are on FMLA then that’s all your sick leave plus nine weeks of PTO. Your boss can’t deny FMLA.

      1. Uncle T

        Comp time is almost always off the books – he’ll lose it all if he leaves. If I were him I would start a “no-work Fridays” and dare the boss to fire him for it. 9 weeks is almost a full year of not working on Fridays.

        1. Just Jess

          That would be an interesting situation if a government worker had accrued and was viewing nine weeks of comp time in a timebank that was also off the books.

          Regardless, those are some suggestions for banked comp time if you have to receive it and have restrictions on when you can use it.

          1. Your Tax Dollars at Work

            It’s not off the books, but yes we lose it all when we leave! I get paid out for vacation but not sick/comp/personal time. Sometimes people with lenient bosses continue filling out timesheets for the government job while they work another job, but that seems a lil unethical to me.

      2. Nonprofit pro

        We don’t get paid out comp time when we leave. At my org, we only get paid out up to 200hrs of vacation, no accumulated sick or comp time.

        1. Just Jess

          For the government worker’s situation above, I’d be very surprised if they don’t get a comp time payout from government employment upon separation.

          For situations like yours if you’re currently at a non-profit, I’m wondering if they’d let you use all forms of PTO during FMLA (God forbid you have to use FMLA) which is federally regulated unpaid leave. But depending on how shady your org is, they may illegally try to prevent people from using FMLA in the first place. I don’t know what’s going to work for you. Good luck.

          I’d say the point of my replies has been “it sucks having comp time restrictions, so here are some situations where having a big bank of it might help your situation.” This isn’t a blanket statement for everyone.

    2. She Who Must Be Obeyed

      I don’t know where you work, but at both IRS and the Post Office, comp time becomes overtime if it’s not used within a specified amount of time (six months at IRS; I don’t know how long at the Post Office–I’ve usually taken the pay). But they can’t deny much vacation, either. At IRS, they really frown on letting people off at peak times and at the Post Office only managers get any time off in December (guess how that makes employees feel when we’re on mandatory six 12-hour days a week for weeks?). But the rest of the year, we pretty much get our time off…but then, both organizations have unions, so maybe that’s the difference.

      1. Your Tax Dollars at Work

        Yeah, my job is non-unionized because the particular branch of government I work in is both fire at will and exempted themselves from unions (like the US Congress did(

  35. Dotty

    Would any fellow UK readers know how this would work in the UK? Our company has announced a different policy based on pay grade where those at the entry grades get paid overtime or time off in lieu but those at manager levels wouldn’t get either.

  36. Thanklaboritsfriday

    Sorry for my ignorance (my industry has totally different norms than most offices) but what does “comp time within the same work week” mean? Like, if you’re already over forty for the week, an “extra” paid day (at 1.5 time)? sounds the same as OT pay, right? Or are they trying to give you “extra” paid time at 1:1 (boo!)? Or is this something totally different?

    1. Ask a Manager Post author

      You still need to be paid overtime on any hours over 40 worked in a week.

      So what’s allowed is this: You normally work 9-5 M-F. On Tuesday you work until 7 pm, so they say “we’re giving you two hours of comp time to take this week.” So you only work 9-3 on Friday. As a result, your total hours for the week still don’t go over 40.

  37. Is this me?

    Sometimes you read these and think, “Did I actually write this and forget that I sent it to AAM?” I honestly feel like this could have been written by the person who replaced me for the job I left because of this exact situation. Either that, or it is rampant in nonprofit fundraising jobs!

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