Ferrara Fiorenza P.C.

Overtime Obligations with Respect to Non-Instructional School Employees

We often receive questions from school officials about whether they are required to pay overtime to non-instructional employees who work more than 40 hours in a workweek while working two or more different jobs for the district/BOCES.  Generally speaking, schools are obligated to pay overtime (i.e., not less than one and one-half times the employee’s regular hourly rate of pay) to these employees under these circumstances. Moreover, the Fair Labor Standards Act (FLSA) and its regulations explicitly state that collective bargaining agreements cannot waive or reduce the Act's requirements in this regard.  This means that school administrators must pay overtime to employees performing multiple jobs or duties for the district/BOCES (if they work more than 40 hours in a week), even if the district/BOCES and the employees’ union have negotiated separate wage rates for any such additional duties or jobs.

In circumstances where a non-instructional, non-exempt employee performs differing jobs for a school district/BOCES and is thus subject to differing rates of pay, the calculation of overtime pay can get complicated. The New York State Department of Labor’s (NYSDOL) regulations that state that “An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate in the manner and methods provided in . .  the Fair Labor Standards Act [FLSA]”. (12 NYCRR 142-2.2.) The FLSA provides a number of methods for calculating an employee’s regular rate of pay under these circumstances.  

Perhaps the least complicated method is known as a “weighted average” calculation.  Using this method, the employee’s “regular hourly rate” of pay is a weighted average of the hourly wage rates for all the positions the employee worked during that workweek. That is, total straight-time earnings for the week are divided by the total number of hours worked at all jobs. (29 C.F.R. §778.115.) Once the weighted average (regular hourly rate) is determined, the district/BOCES must make sure that the employee receives at least one and one-half times that rate for each hour of overtime worked. 

The other FLSA-approved methods for calculating overtime may require special agreements with employees and/or their union representatives and/or more complicated calculations.

If you have any questions regarding your District’s obligation to pay overtime to certain classes of employees or questions regarding your overtime calculations, please feel free to contact our office.