Calculating Oregon and Federal Overtime Law Calculations
Oregon and federal overtime laws generally require employers to pay their employees overtime wages. Typically overtime wage law defines overtime as all hours the employee works in excess of 40 hours in one week. In some situations, such as factories and prevailing wage jobs, Oregon overtime laws require employers to pay overtime wages on a daily basis. Prevailing wage jobs, Oregon and federal, generally require overtime be paid after 8 hours per day. When Oregon employees work overtime hours, they must be paid overtime wages. Overtime wages under Oregon overtime laws and federal overtime laws (“FLSA” or “Fair Labor Standards Act”) mean that the Oregon employee is paid 1 ½ times their regular hourly rate of pay for all overtime hours the employee worked. OAR 839-020-0030. The 1/2 portion of the overtime wage rate can also be referred to as overtime premium pay. From here, it gets more confusing, because the calculations for overtime wages differs between Oregon overtime laws and the FLSA.
How is the “regular rate” of pay used to calculate overtime?
Both Oregon overtime laws and the FLSA use what is called the “regular rate” to determine how much overtime is due. The confusing part is that Oregon overtime law defines “regular rate” differently than the federal overtime laws under the FLSA. In many instances, the differences between the “regular rate” defined under Oregon overtime law and the “regular rate” defined under federal overtime law is irrelevant because the calculations turn out the same. However, this is not always the case.
Calculation of “regular rate” under federal overtime laws, FLSA
Under the FLSA, the “regular rate” is defined by statute. It states: “the ‘regular rate’ at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include—” gifts, vacation, holiday, and discretionary bonuses. Discretionary bonuses are those that are at the whim of the employer, and no requirement to pay. So if you meet a production quota, and are entitled to a bonus, it is not discretionary and must be included in your “regular rate.”
Calculation of “regular rate” under Oregon overtime laws
Under Oregon overtime laws, the “regular rate” is defined by statute. ORS 653.412. It states: “‘Regular rate of pay’ means the regular hourly rate or hourly equivalent that an employer must pay an employee for each hour the employee works during a given work shift, including any shift differential pay.” “Regular rate” does not include tips; bonuses or other incentive payments; overtime, holiday or premium pay.
How “regular rate” calculation when bonuses are given can lead to overtime violations under the FLSA
Since many bonuses must be included in the “regular rate” under the FLSA, some employers failed to do so. This is important, because it is the “regular rate” that is used to calculated the overtime wages at 1 1/2 times the normal rate of pay. When an employer does not include the bonus, the “regular rate” is artificially lowered, and thus all overtime wages are not paid. In addition to the unpaid overtime wages, the employee likely is due liquidated damages in the amount equal to the unpaid overtime. Further, if the employment has ended, Oregon wage and hour law provides a penalty against the employer for failing to timely pay all wages, including overtime wages. Late pay page.
Another situation arose with piece rate employees under the FLSA. The employer broke the piece rate wages into a piece rate, and a bonus calculated as percentage of the piece rate. In this particular case, the employer chose to deduct the overtime from the bonus calculation to reduce overtime wages due. Cable Communications. In this case, the Ninth Circuit expressly stated this type of overtime wage theft is not allowed.
Management gets creative on how they steal overtime wages
There are as many ways to steal overtime as there are managers to create them. Some change how your wages are tracked using electronic time clocks to change the hours worked. Some deduct short lunches, or deduct 30 minutes for lunches. Others, as discussed above, fail to include all wages in the “regular rate” as required by law. Cable Communications.
How do you get what you deserve when your employer steals your overtime?
You track your hours on a weekly basis. Be accurate, minutes matter. You can write down the exact time from the electronic time clock. Then check to make sure that your paycheck or cash wage reflects your real pay. That’s the best, and often the only way to catch a wage and hour violation. This is true, because employers get creative how they steal your overtime pay.
1. Add up all the hours you worked in the week.
For the sake of argument, let’s say you worked 48 hours this week. Hours worked must include all pre- and post-shift work you do, as well as normally unpaid lunch breaks that get interrupted by your duties.
2. Calculate your “straight-time” pay first, how much you made for the first 40 hours you worked.
3. For your overtime hours, take your “regular rate” described above and multiply it by 1 1/2 for each overtime hour you worked.
4. Add your overtime wages to your straight-time wages to determine what you should have been paid.
The Oregon wage claim attorneys (lawyers) at Schuck Law, LLC have filed multiple overtime cases for employees under both Oregon overtime laws and the federal (FLSA) overtime laws. In addition to recovery of unpaid overtime wages, liquidated damages, and penalty wages outlined above, employees may also sue to recover their costs, disbursements, and attorney fees incurred in prosecution of the overtime wage claim lawsuit. This allows the wage claim lawyers at Schuck Law, LLC to take overtime wage claims on a contingency fee basis. This means, with minor exceptions that are within your control, that our FLSA wage claim lawyers only get paid their attorney fees by the employer if they recover unpaid overtime wages or penalties for you.
Our overtime wage claim attorneys (lawyers) at Schuck Law, LLC regularly prosecute Oregon overtime and federal overtime (FLSA) wage claims throughout Oregon, including but not limited to, Portland, Astoria, Beaverton, Portland, Bend, Clackamas, Coos Bay, Grants Pass, Gresham, Hillsboro, Portland, Hood River, Klamath Falls, Lake Oswego, Oregon City, Portland, Madras, McMinnville, Medford, Milwaukie, Portland, Newberg, Oregon City, Portland, Sandy, St. Helens, Portland, Tillamook, and West Linn.
Google By David Schuck