5/21/18: There’s updates an update of pyramiding of overtime here:
here: https://www.charlesakrugel.com/business-management/response-to-readers-query-regarding-pyramiding-of-overtime.html; here: https://www.charlesakrugel.com/business-management/pyramiding-of-overtime-revisited.html
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.
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?
I would like to see the contract language. It may be possible that OT compensation is being interpreted incorrectly. It may be possible that the compensation between the hours of 9PM and 6AM as “premium pay” and not OT? In that case, there is no “pyramiding.”
“Pyramiding” is defined as overtime pay on overtime worked. Ruth, in your case, I think you worked 40 hours as of Wed. – Mon (10), Tues (20), Wed (10). Since you worked 10 hrs. Tues beyond your regular shift, you were entitled to OT for the 10 additional hours worked. Your hours worked Saturday were properly paid because if you set aside the 10 OT hours on Tues you had not “worked” 40 Straight time hours. The 2 hours you clocked out ;late were not authorized, so they do not count as “hours worked” and therefore are not included in any overtime compensation calculation.
We receive double time for working on the 7th consecutive day. If this day falls in the middle of a normal work week does the hours worked apply to our base 40 hour requirement or do we have to have 40 hours at regular pay before we get overtime again in the same pay week?
If I’m understanding you correctly, under most circumstances, you have to work 40 hours at regular pay before getting o/t. I’m not sure that the 7th consecutive day falling in the middle of a work week matters if you’ve already put in 40 hours.
With regard to OT triggers. We have 3 triggers in the CA. 1. daily extended shifts (stands alone and those extra OT hours are not counted in the 75 hour trigger but the original work hours forthe shift is) , 2. OT for hours worked in excess of 75 hrs bi weekly, and 3. work 7 consecutive days every day worked there after is OT until a day off. So you could receive OT for 8, 9 , and 10th day in a row. We work a 75 hour bi-weekly pay cycle. The 7th day language just says “7 th day” and not referrs to hours, and is independant of the 75 hours. You can reach 7 day by working 7 x 4 hours shifts, or 7 x 6 houres shifts. And never cross the 75 hour threshold.
We have 4, 6 , 8 and 12 hours shifts. If the 7th day lands on the same day as you accumulate the 75 hour threshold, the 7th day should be paid. then as this is premium money does that particular day drop out of the hours woorked (75)?
Keeping in mind, the Employer controls the work schedule and can call in employees and has the right NOT to work 7 days in a row.
I believe this 7th day in the CA is to be more punitive for over working employees. So is the 7 th day a stand alone trigger, and if those hours are still worked inside there normal 75 hours, or once trigger the 7 day are the hours, not counted towards their 75 hours regardless if it falls inside there normal 75 hours. ?
Working in your regular department on Saturday for overtime, and then following working in anther department with higher wages for another two hours. Then the employee getting paid the higher rate for the full day, Is that Pyramiding overtime working in two different classification on the same day
No, that’s not pyramiding. Pyramiding has little to do with classification & relates more to the appropriate rate of pay.
In my job, my normal schedule is 12hr shifts. I work 36 hrs one week and 48 hours the next week. We have 8 hrs built in OT on the last day of the pay period, anything over 80 hrs it’s OT. We get 8 hrs at 1 1\2 pay on holidays. If the holiday falls on the 36 hr week, we get the holiday pay and our OT. If the Holiday falls on a work day on the 48 week, we get the Holiday pay for 8 hrs and then they cut out our OT on Sat, they say that is pyramiding. What is your opinion?