Employment Law

I work full time (40) hours as a receptionist in a cosmetic…

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I work full time (40)...

I work full time (40) hours as a receptionist in a cosmetic surgery office. One or two nights a week I stay overnight to back up the nurse with patients in an emergency. I can sleep or read, I just have to be there. I get paid different rates for each job. I get just a flat fee of $100 for the 16 hour overnite shift. Should I be paid San... Read full answer

I work full time (40) hours as a receptionist in a cosmetic surgery office. One or two nights a week I stay overnight to back up the nurse with patients in an emergency. I can sleep or read, I just have to be there. I get paid different rates for each job. I get just a flat fee of $100 for the 16 hour overnite shift. Should I be paid San Francisco minimum wage ($10.24/hr), and overtime or doubletime?  The CA Labor website says I should be paid overtime at my "regular rate of pay" which they define as the weighted average of my two jobs.  My employer doesn't seem to know what they are doing (small office).

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Answered in 8 minutes by:
10/12/2012
JackJD
JackJD, Lawyer
Category: Employment Law
Satisfied Customers: 535
Experience: I've been in practice 30+ years, concentrating on employment law for 15 years. I enjoy helping people.
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JackJD :

Hello, my name is XXXXX XXXXX I'll answer your question.

You need to be paid the minimum wage for the hours that you are required to be at the employer's premises in order to fulfill the employer's needs. This is the interpretation on the federal minimum wage law ... the Fair Labor Standards Act. (You can find the answer in the FAQ section of the Wage and Hour Division's web site. Think of firefighters or paramedics sleeping at the fire station (so they can answer a call when it comes in). That's you. The California minimum wage goes piggyback on the federal FLSA definitions of what is work.


 

JackJD :

The overtime rules follow the same rule .. so you should be paid time and a half after 40 hours.


 

JackJD :

Have I answered your question, or do you have a follow up?


 

Customer:

Ok, that is what I read on that site, but talking to the US Dept of labor folks scared me that I was wrong (they said no pay for 8 hours of sleep!). That site page goes on to say that OT is calculated based on your "regular" rate of pay, which they define as the "weighted average" of two jobs different rates of pay. So in my case, would that be my 40 hrs rate plus min wage for 16 hrs/56 hrs = $X Reg Rate? Then Reg rate x 1.5 x 4 hours and Reg Rate x 2 x 12 hours for my night shift of 16 hours?

JackJD :

Well, they are wrong ... what can I say? You will not be sleeping if an emergency happens. You are available to the employer for the entire 16 hours.

On your calculations: you've got the basic idea right, but I go ahead and use your regular hourly rate for the base rate. What you've done, is upped the hourly for the 16 hours to the minimum wage, and then run the calculation. But your employer doesn't pay you the minimum wage. I think the WHD "weighted average" is for places where they pay you a legal wage for each job. (I could be wrong on this one.)

Customer:

It sounds as though the "regular pay" issue is not well understood yet by many. All my OT hours were worked at night, so my day rate doesn't make sense to use for the OT rate calc.


Logic says that the employer has to pay the legal wage (min wage) and then calculate the "regular" rate for OT calcs according to the FAQ page you referred me to describes it that way. Please review their discussion on this topic and confirm that you agree with my interpretation.

JackJD :

Yes, I understand what you are saying, that the OT is worked in the "secondary job" of "night-back up." But, don't jump to the conclusion that your OT happens on your secondary job. You count the hours for the week starting at 12:01 am Sunday. So, depending on when your night is, it may be at straight time, and the OT at your receptionist job.


 

JackJD
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