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Question
Mr Phillips,

My wife is an RN working for a good sized nursing home that has multiple locations here in Central NJ.  She works the 3pm to 11pm shift for which she is paid a $3.00 differential per hour over what the daily 7am to 3pm is paid.  When she works overtime, they do not pay her time-and-a-half on the $3.00 differential... they calculate the OT based on the 7 to 3 rate, even though she worked 3 to 11.  The head of HR told her they aren't required to pay OT on the differential.  I say the nursing home is in violation of both State and Federal Law...  I'd appreciate you comments.

Thank you,

Tom

Answer
Tom

Sorry for my delay in response.  Easiest question I had in years... yes, you are right- the differential is included in OT calculation.

Obviously the nursing home needs someone who knows how to interpret OT laws so they can avoid embarrassment like this...  Keep in mind, it is not ONLY your wife who is due OT for the last 2 years, but every employee(most likely) who worked the same shift.    

The fact sheet you need to document the law is attached-- # 54

http://www.dol.gov/whd/regs/compliance/whdfs54.htm


After the 8 / 80 rule go down to section on supplemental pay and pay differentials.   

Good luck.   

Another less direct source as well...

§ 778.208   Inclusion and exclusion of bonuses in computing the “regular rate.”

Source link for below info:
http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786


Section 7(e) of the Act requires the inclusion in the regular rate of all remuneration for employment except eight specified types of payments. Among these excludable payments are discretionary bonuses, gifts and payments in the nature of gifts on special occasions, contributions by the employer to certain welfare plans and payments made by the employer pursuant to certain profit-sharing, thrift and savings plans. These are discussed in §§ 778.211 through 778.214. Bonuses which do not qualify for exclusion from the regular rate as one of these types must be totaled in with other earnings to determine the regular rate on which overtime pay must be based. Bonus payments are payments made in addition to the regular earnings of an employee. For a discussion on the bonus form as an evasive bookkeeping device, see §§ 778.502 and 778.503.


Regards,

Brian

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Brian Phillips

Expertise

Foreign and US university students -*PLEASE*- DO NOT waste your time asking for my opinions, comments or analysis of your homework questions. Homework questions are not answered and are rejected. I am happy to help answer questions asked by employees and employers regarding United States based state and Federal wage and hour, OT, Fair labor standards, FMLA, COBRA, Recruiting, Interviewing techniques, employee manuals, discipline, terminations/quits, unemployment, HRIS rollout, Employee Leasing or Staffing company cost analysis, day to day scenarios, work situations and more. Essentially a well rounded HR generalist who operates Harvis, Inc., a human resource consulting and service business based in Northeastern Pennsylvania "NEPA". http://www.harvis.org

Experience

At Harvis, Inc., we provide Human Resource products, services and advice to small businesses that may not have the time or resources to hire a full time HR department. For larger companies with HR managers in place, we compliment their expertise to help with time consuming or time sensitive projects like updating policy manuals, screening and interviewing and more. We make workplaces better by becoming that 1/2 person they need to help handle HR responsibilities on a daily, weekly or monthly basis. Formerly responsible for all Human Resource activity for a staffing agency with 2,500 annual employees as well as an employee leasing / PEO business with 1,500 annual employees. Designed and implemented the HR structure to support hundreds of clients in excess of $ 500 million in payroll volume over career in Human Resources.

Organizations
* President 2006- Harvis Inc. HR Services * President 2010-13 Business Association of the Greater Shickshinny Area - Shickshinny PA * President 2013- ShickshinnyForward Not for Profit Community Long Term Revitalization Organization and former member of varios Chambers of Commerce and HR Taskforce, former President of NBC Business Club 2 years

Education/Credentials
Bloomsburg University - 1993 BS Marketing, Bloomsburg Pennsylvania and Luzerne County Community College - 1991 Business Administration, Nanticoke Pennsylvania

Awards and Honors
* Better than average - 20/10 vision * Bestowed with an occasional "Thank You" from clients and their employees.

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