A question has come up in our church regarding overtime pay. We have a two-week payroll period, and we have a salaried, nonexempt employee who would like to work fewer hours in the first week of each pay period and additional hours in the second week to bring her total hours to 80. For example, she would work 30 hours in the first week, and 50 hours in the second week. Since she works no more than 80 hours for the two-week pay period, is she entitled to overtime for the additional ten hours worked in the second week? Some in our church say that she is, while others say that she is not.
The Fair Labor Standards Act takes a single workweek as its standard and does not permit averaging of hours over two or more weeks. Thus, if an employee works 30 hours one week and 50 hours the next, he must receive overtime compensation for the overtime hours worked beyond the applicable maximum in the second week, even though the average number of hours worked in the two weeks is 40. This is true regardless of whether the employee works on a standard or swingshift schedule and regardless of whether he is paid on a daily, weekly, biweekly, monthly or other basis. 29 CFR 778.104.