A colleague of mine recently posed the following question to me & some other labor & employment lawyers concerning a union collective bargaining agreement & overtime (OT) compensation. Below is the complete discussion & analysis. Note that the Fair Labor Standards Act doesn’t apply in this situation because the union collective bargaining agreement supersedes it.
Subject: Pyramiding of Overtime
I need some advice from the experts so that is why I’m writing to you. I have a question regarding overtime.
We have a contract for a workforce that does not have regular hours so there are no scheduled shifts. The contract calls for overtime pay (1.5) for all hours worked between 9 pm and 6 am Monday through Friday. It also has a clause for overtime after “8 hours worked.” Of course, there is a clause that says there will be no pyramiding or duplication of overtime. The only daily guarantee is 4 hours when called to work.
In this case the employee was scheduled to work at 4 am and was not relieved from duty until 4 pm (Working 11.5 hours with a half hour lunch). He was paid 2 hours OT from 4 am to 6 am and then 8 hours straight time from 6 am until 2:30 pm and then went into daily overtime from 2:30 pm until 4 pm. The Union contends that the employee is due overtime after “8 hours worked” or at 12:30 pm until 4 pm. The company is relying on the clause that says no pyramiding or duplication of overtime. This is one of those cases that I could probably argue either way but I want to get some ideas of what others would do. Thanks for your assistance.
Charles Krugel’s Response: I think that you’re interpretation is logical & legal. The union is asking for 2 hours of extra OT (i.e., pyramiding).
One question I have is can the union produce any prior instances (past practice) where an employee was paid OT for hours worked after 8 hours even when the employee worked at an OT rate prior to 6AM on a M-F? If they can establish a past practice, the union has a better chance of succeeding.
- Comment From Krugel: James is right. If it only happened once or twice, then these incidents might be too isolated to constitute a past practice, & the union is wrong.