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Employment Law/Time Sheet Hour Counting

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Question
My wife works for an early education(pre-school) in the Northern VA area.  As she tells me the school is a "for profit" company which means they make money based off the enrollment of kids. Well this company has not had much success in enrollment, so they cut hours, and they way they do it is by extending the lunch break time. Also if the teachers have to stay for a meeting or have a scheduled meeting on a weekend, the owners like to "extend" the teacher's lunch break to avoid possible over time.  I want to know if that is legal? Making someone take an extended break just so no one goes into over time.  Again this is a For Profit school.

Answer
Josh,

The scenario you describe is not that uncommon.  We see it in all types of industries these days, particularly retail.

Generally, employers are free to schedule employees how they choose unless they are violating an employment contract or engaging in unlawful discrimination, and the “at-will employment” doctrine would allow an employer to change an employee's hours with or without notice, in most instances.

The Fair Labor Standards Act (FLSA) requires overtime pay if an employee works more than 40 hours during a workweek.  It does not prohibit employers from adjusting work schedules within a workweek to avoid paying overtime. For more information regarding this, please see the following information from the U.S. Department of Labor’s website: www.dol.gov/whd/regs/compliance/hrg.htm#content.

As you may know, employees whose jobs are governed by the Fair Labor Standards Act (FLSA) are either "exempt" or "nonexempt." Nonexempt employees are entitled to overtime pay while Exempt employees are not.  Bona fide teachers in preschool and kindergarten settings may qualify for exemption from the minimum wage and overtime pay requirements as "professionals".  Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in this activity as a teacher in educational establishment. It should be noted that, although a preschools may engage in some educational activities, preschool employees whose primary duty is to care for the physical needs for the facility's children would ordinarily not meet the requirements for exception as teachers under the applicable regulations.  Please see the following for further explanation: http://www.dol.gov/whd/regs/compliance/fairpay/fs17d_professional.pdf.

While probably not what you wanted to hear, I hope you find this information helpful.

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Michael Lore

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I will take questions regarding employment law, with a focus on wage and hour issues involving overtime pay under the Fair Labor Standards Act (FLSA) and applicable state laws (eg. California).

Experience

I am an attorney with 15+ years experience in the area of labor and employment law, with a practice that concentrates heavily in the area of wage and hour litigation - involving unpaid overtime wages, commissions, work related expenses and vacation pay.

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American Bar Association, American Association for Justice, National Employment Lawyers Association

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