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Employment Law/Overtime vs Comp/Flex Time


I have been told that an employer cannot dictate whether you receive OT pay or need to use comp time.  In the past, I was told by my employers that we can either receive the OT for hours worked over 40 or just leave early on Friday afternoon.  At my new employer, they are requesting (demanding) that we leave early as to not receive OT that was previously worked earlier in the week. All employees are non-exempt.

For example: Our workweek is Su-Sa.  I was schedule 40hrs with Mon/Wed off. However, I was called in to work 4hrs on Monday to cover a sick employee.  Therefore, on Saturday, I was told I had to leave 4hrs early.  Rather than make a stink about it in front of other employees, I agreed.

I would like to be able to show my employer the exact law that states they cannot dictate this.

Any help is much appreciated.

~Amanda Shuffitt

Hi Amanda,

I would like to help you, however, there is not a law that tells the employer that he cannot let an employee go home early to avoid overtime. The reason is according to the FLSA (Fair Labor Standards Act) overtime is not earned until after the employee has worked 40 hours in a week. Anything over 40 hours is overtime. Until 40 hours is worked there is no overtime.

The employer is allowed to set his schedule however he needs to staff his business. If you are hourly non exempt you are paid for all hours worked, and overtime for all over 40 hours. If you are sent home early than you have not worked over 40 hours. Since he only has you scheduled to work 40 hours you have worked the correct time.


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Shirley McAllister, CPP, PHR


I can answer questions about payroll laws and payroll tax laws and Human Resource laws and agencies. I can answer federal payroll and human resource law questions and most states; I do not have a knowledge of the local taxes for cities and counties within the state. If and when I can I will try and send you the website where you can reference the answer and where you can obtain more information as well as a contact number if needed for that particular agency. Some agencies I have worked with are IRS, Department of Labor (federal and state), Revenue Canada (and provincial governments), Inland Revenue, OSHA (0ccupational Safety and Health Administration); Social Security Administration and National Child Support as well as other agencies in Payroll and Human Resources. Some Laws I am particularly familiar with are FLSA (Fair Labor Standards Act), ADA (Americans With Disabilities Act), FMLA (Family Medical Leave Act) COBRA (Consolidated Omnibus Reconciliation Act ) , QDRO's, QMCSO's, and other support orders and garnishments, USERRA (Uniformed Services Employment and Remployment Rights Act,PPA Act (Pension Protection Act of 2006, As well as most other employment type acts. I am also well versed in the Title V Civil Rights Act and the HIPAA (Health Insurance Portability and Accountability Act).


30 years in Payroll and Human Resources

SHRM (Society of Human Resources) APA (American Payroll Association) DOLEA (Department of Labor Employers Association) CPA (Canadian Payroll Association) NAPW (National Association of Professional Women) The Mentoring Network

PHR Certification in Human Resources CPP Certification in Payroll in U.S. Payroll Administrator and Payroll Supervisor certification in Canada

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