What happens when an overtime violation is found? Well, as a management side practitioner, I want my client to come into compliance with whatever parts of the FLSA they are (allegedly) violating. For overtime violations, I have found that one manner of remedy is to change employee work schedules so that they do not work overtime. This can be a risky proposition if the DOL (or an employee) alleges that the change was in retaliation for the filing and prosecuting of wage-hour complaints.
The Eighth Circuit has breathed life into this “remedy” and has sanctioned its use. In a FLSA collective action, a group of employees had sued, claiming that their employer’s decision to change their workweeks in a manner that cut back on their overtime hours violated the Fair Labor Standards Act. T he Court rejected this, concluding that the FLSA allowed such alteration of work schedules to achieve the “goal” of reducing overtime expenditures. The case is entitled Abshire et al. v. Redland Energy Services.
The Court emphasized that where the change in schedule is intended to be permanent and was implemented in accordance with the FLSA, the motivation of the employer did not mean anything. The drill operators for this gas company used to work on drilling rigs for seven consecutive days; they then were off for seven days, with one weekend off every other week. The Company then reduced the crew size and changed the work week from Tuesday-Monday to Sunday-Saturday. This reduced overtime because the employee work weeks would now fall into two separate payroll periods.
The employees charged that the FLSA forbade the changing of work week to reduce overtime. The Company defended by asserting that this change placed all employees on the same workweek, engendered efficiency and (admittedly) reduced overtime outlays. The Court concluded that the proffered reason was a legitimate business reason for changing its work week for payroll purposes.
This is an important remedial guidepost for employers. There is, as they say, more than one way to skin a cat or to cut overtime costs/exposure