by John E. Thompson
Non-sworn employees are typically not covered by the Section 207(k) exemption under the Fair Labor Standards Act (FLSA) and must be paid overtime in the form of cash or compensatory time off if they work more than 40 hours in an FLSA “workweek.”
Under the 9/80 plan, the employer would set the FLSA “workweek” and schedule for non-exempt employees so that the employees work:
- Nine days in a two-workweek period, but
- Not more than 40 hours in either workweek.
How Does It Work?
Under a typical 9/80 arrangement, the employee works four nine-hour days, followed by an eight-hour workday day that is split into four-hour portions by the mid-day ending of the first workweek, and then works four more nine-hour days in the second workweek. The key is that the employee’s workweek ends during the eight-hour workday, causing the first four hours worked that day to fall into one workweek and the remaining four hours worked that day to fall into the next workweek. In this way, the employee’s hours worked in each workweek do not exceed 40.
If the employee actually works exactly what the schedule calls for during the two workweeks, then no FLSA overtime pay is due for either workweek.
But whatever expectations might be as to the scheduled, usual, or ordinary work time for the employees, the employer still must pay FLSA overtime to every non-exempt employee who ends up working more than 40 hours in either workweek. For example, if in one workweek an employee works three nine-hour days, one ten-hour day, and one five-and-a-half-hour day for a 42½-hour total in the workweek, the worker would be entitled to two and a half hours of FLSA overtime pay for that work.
Other Important Considerations
Most employers must change the affected employees’ FLSA workweek in order to adopt a 9/80 plan. Employers changing the workweek should follow a U.S. Labor Department protocol used to evaluate whether an employee has worked any FLSA overtime during the pay period in which this change occurs in order to ensure that the worker receives the proper FLSA compensation for any such overtime. In addition, there might be an obligation to bargain over the workweek change with a union representing the affected employees.
Finally, employers should also consider the requirements of state wage and hour laws. For instance, if a state’s law requires overtime premium pay for hours worked over eight in a workday, then the 9/80 plan will result in an obligation to pay daily overtime to employees in that state.
Reprinted with the permission of Fisher & Phillips LLP. John Thompson is a partner in the Atlanta office of Fisher & Phillips LLP, a national labor and employment law firm representing employers. He regularly addresses wage-hour matters on its Blog at www.wage-hour.net.