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DOL Issues Advisory Opinion on Shifts that Straddle Two Workweeks

Volume 5, Issue 2
April 11, 2006

n a recent opinion letter, the Wage and Hour Division of the Department of Labor (DOL) discussed how employers may address the work hours of employees whose regular shifts overlap two different workweeks.

In the example given by the employer, certain employees work four 10-hour shifts each week. The employer's workweek begins at 12:01 a.m. on Sunday and ends at 12:00 a.m. (midnight) the following Sunday. The employees at issue work Wednesday through Saturday from 10:00 p.m. until 8:00 a.m. The employer requested the advisory opinion because of its concern with the second Saturday of work, where the first two hours fall into one workweek, and the remaining eight hours fall into the next workweek. Rather than pay the employees for 32 hours for one workweek, the employer wants to pay the employees for a regular 40-hour workweek by essentially prepaying the eight hours that spill into the next workweek.

The DOL stated that "[n]ormally, each work week stands alone and averaging of hours over two or more weeks is not permitted." Inasmuch as the schedule was fixed and the employees would not normally work more than 40 hours in either week, the DOL found, however, that the employer could attribute all hours worked in a single shift to the workweek in which the shift began even if that shift extends into the next workweek. The DOL further cautioned that such a schedule cannot be devised as a scheme to avoid paying overtime under the FLSA, that the schedule cannot be manipulated to avoid overtime, and that overtime must be paid for any hours worked over 40 in each week.

This ruling by the DOL will assist employers whose fixed schedules straddle two workweeks. An employer operating with such a schedule should be cautious, however, to ensure that the schedule and workweeks are fixed and that overtime is paid for all hours worked beyond the 40-hour mark.

To read the full advisory opinion, please visit the DOL website at:

http://www.dol.gov/esa/whd/opinion/FLSA/2005/2005_05_27_17_FLSA_Shifts.pdf

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.