There have been a number of high profile cases in recent years regarding whether certain employees are eligible for overtime pay and under what circumstances—from a legal perspective—such payments can be waived. Speaking to WorkForce magazine, Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz helps to clear up any ambiguity regarding the matter.
According to Hyman, “If a non-exempt employee works more than 40 hours in a work week that employee is entitled to overtime at the required rate of 1.5 times the regular rate of pay.” He adds that paying this overtime is a non-negotiable, even if the employee clocking the extra hours states that they don’t want to be paid at all for the extra work or don’t want to be paid the time-and-a-half fee.
Hyman cites the recent case of Citywide Protection Services, which has agreed to pay $14,760 in back overtime pay to 30 security guards following a Labor Department investigation. According to George Lewandowski, president of the Cleveland-based security company, Citywide Protection Services couldn’t afford to pay its workers time-and-a-half to work overtime, but employees begged for additional hours in order to boost their paychecks and asked to work beyond their 40 hour work week in exchange for their typical hourly rate.
In discussing the case, Hyman notes that “it does not matter whether your motives are altruistic or malicious when avoiding overtime payments. If a non-exempt employee works more than 40 hours in a week, you must pay them overtime. Period. No exceptions.” He further added that “employees cannot ask to work the extra hours at their regular rate. They cannot choose between receiving less than the full overtime premium and no overtime hours at all.”