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A compressed schedule colloquially called a "9/80" pay
plan seems to be making a comeback. Under this arrangement, the
federal Fair Labor Standards Act "workweek" and the
schedule for non-exempt employees are set 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 non-exempt employee works
four 9-hour days, followed by an 8-hour workday day that is split
into 4-hour portions by the mid-day ending of the first workweek,
and then works four more 9-hour days in the second workweek. The
key is that the employee's workweek ends during the
8-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 management's expectations might be as to the
scheduled, usual, or ordinary worktime 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 9-hour days,
one 10-hour day, and one 5˝-hour day for a 42˝-hour
total in the workweek, the worker would be entitled to 2˝
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. As we have said in
another post, 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.
An approach that passes muster under the FLSA must still be
evaluated against, and take into account the implications of, the
applicable laws of other jurisdictions in which the employer
employs people. For instance, if a state's law requires
overtime premium pay for hours worked over 8 in a workday, then the
9/80 plan will result in an obligation to pay daily overtime to
employees in that state.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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