Jan 022013

“Pyramiding” of Overtime

Posted in Business Management, Charles Krugel, Human Capital, Human Resources, Labor Law, Labor Unions • Tags: ,

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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.

Alternatively, can the union produce any instances where an employee was paid a premium OT rate or duplicative rate for working almost a triple shift (i.e., 3 times the regular 4 hour guarantee)?  Or, can the union produce any instances of anything greater than time-and-a-half rate for any hours worked ever?

James’ Response: That’s generally true of past practice if it is a common occurrence. However if it has happened only once or twice in modern memory my response is that nothing in the agreement oblidges me to perpetuate the mistakes of my predecessors.
  • 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.
Debbie’s Response: Gary – I think Charles provided a great answer. Your language seems to imply that regular time pay commences at 6am, so the logic seems to flow that the hours worked from 4-6 is at premium pay, and then again after 8 hours. To Charles’ point, the outcome will rest on your historical practice in this space and any records or documentation to that effect. How do your supervisors normally schedule work of this type, and are they consistent in the approach you described? Are you aware of any training materials provided to supervisors that offer insight into the pactice in this space? If you do have such materials, that would help reinforce your interpretation of the language, and could also offset the union’s claims regarding any one-off’s by a particular supervisor that would be counter to your interpretation below.
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Ruth said,

May 4, 2013 @ 2:24 pm

Our Ct Nursing contract says OT retro to end of shif when working 2 hrs or more post end of shift. Also post 40 Hr.
2 Scenarios:
A) i am scheduled for 8 hr shifts Mon, Tues, Wed, Thurs and Sat. I stay for a double shift Tue and come Sat, I am working beyond 40 Hrs. I get this, I was pd OT on Tues and as I was pre schedueld for Sat, I am not pd OT for Sat, the OT was paid Tues.
B) My scheduled 10 hr shifts are Mon, Tue, Wed, I worked a double on Tues and paid OT for same, I also accumulated 2 more hrs when I got out a bit late on other days that week. On Saturday I come into cover a call out, becaus it is my belief that as I have worked 40 hrs this week already, I will be paid over time. I was denied, citing Pyramiding ??? What would you say about this?

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