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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
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Experience:  I provide employment and discrimination law advice in my own practice.
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My companies are in PA. I run two separate companies out of

Resolved Question:

My companies are in PA. I run two separate companies out of one building location. One is a trucking company requiring a CDL license to drive the equipment. One is water sales and loading. When no driving work is available I ask if the drivers want to work for the non=trucking company for a lesser hourly rate. If they go over 40 hours in a week how do I pay the overtime?
Submitted: 11 months ago.
Category: Employment Law
Expert:  Dimitry K., Esq. replied 11 months ago.
Thank you for your question. I am a licensed Pennsylvania professional. Please permit me to assist you with your concerns.

When you pay them, do you pay them with two separate checks and with two separate EINs or do you send them one check for all of the work? Please advise!
Customer: replied 11 months ago.


We pay with one check from the trucking company but there are two separate companies and two EIN's. The second company reimburses the trucking company for the accounting, bookkeeping, payroll services, etc.

Expert:  Dimitry K., Esq. replied 11 months ago.

Thank you for your follow-up, Sparky.

In this situation there is a reasonable assumption that the companies are really one unit, since the employees get paid by one check. The employees almost see it as working for one company but having their time be 'bought' by a second entity but for just a lower rate. As a consequence they would be entitled to overtime once they hit 40 hours or more for joint hours, and you would then need to pay out overtime based on time and half on whatever additional hours that they work.

If you would pay them separately and make them employees of both companies, and rather than reimburse, pay them separately out of each, then each hourly rate would count separately, so if they reach 40 hours jointly, it would not create an obligation for paying overtime. Instead, it would only create an overtime obligation if that specific company's time would go above 40 hours.

Hope that helps.

Expert:  Dimitry K., Esq. replied 11 months ago.

Sparky,

In your follow-up you asked:
At what rate of overtime the higher trucking company rate or the lower labor rate?
--------------
At the rate that the person worked based on the project. So if his 41st hour is for trucking, he gets paid time and a half for a higher rate. If he worked as a laborer, then it would be a lower.

Hope that clarifies.

Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 37670
Experience: I provide employment and discrimination law advice in my own practice.
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