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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Employment Law
Satisfied Customers: 19125
Experience:  B.A.; M.B.A.; J.D.
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I am a employer in VA. I recently had a payroll audit. I had

Customer Question

Hello I am a employer in VA. I recently had a payroll audit . I had been working employees on 80 hrs every two weeks. I misunderstood 8 and 80 as 8 or 80 We are having to back pay for two years. We are paying back on the 8 and 80 . We have changed the dietary to 40 hr workweek. Can we chose to back pay two years on the 40 hr workweek?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

Two years is the normal back pay requirement for an FSLA for pay issues, unless there is evidence of willful action on the part of the employer to deprive the employees appropriate overtime/minimum wage. Then the Department of Labor could look back up to three years.

Your facts indicate that there would not be evidence of willful behavior and so two years is appropriate.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.

Customer: replied 1 year ago.
My question is can I choose the pay schedule to back pay . I was paying on the 80 . Can I choose the payback method to be a 40 hr workweek . This would be 50 % less at least .
Expert:  Allen M., Esq. replied 1 year ago.

I'm going to have to opt out. I do not understand what you are really asking here, so I'll allow other experts to address the question.

Customer: replied 1 year ago.
Ok thanks
Expert:  Phillips Esq. replied 1 year ago.

A different Attorney here.

My question is can I choose the pay schedule to back pay .

Response 1: No, you cannot. You have to payback according to the violation.

I was paying on the 80 . Can I choose the payback method to be a 40 hr workweek . This would be 50 % less at least .

Response 2: No, you cannot do that.