This blog article was authored by Partner Liz Arce in 2013 and continues to be one of our most popular articles. This post was reviewed in May 2024 and is up-to-date.
Many public employers utilize 9/80 work schedules for non-exempt employees. A 9/80 work schedule is essentially a two-workweek schedule of eight 9-hour days, one 8-hour day, and one day off. However, once the 9/80 work schedule is implemented, there are a number of mistakes unsuspecting employers often make which can inadvertently trigger overtime liability. These pitfalls, which can also apply to a 3/12 work schedule, and how to avoid them are described below.
Pitfall #1 – Not Designating the Workweek Properly. Although employers are required to designate a workweek for each non-exempt employee, they often fail to do so. The problem this creates with respect to a 9/80 schedule is that the employee will end up working 36 hours in the first workweek and 44 hours in the second workweek because the employer uses an FLSA workweek which ends on a Saturday or Sunday night at midnight. Thus, the employer will likely incur 4 hours of overtime liability in the second workweek. This problem can be avoided by designating an employee’s workweek to begin four hours after the start time of the employee’s eight hour day, and designating the employee’s day off on the same day of the week in the following week. The Department of Labor regulations implementing the FLSA specifically permit an employer to designate FLSA workweeks for individual employees. 29 CFR section 778.105. Thus, if you have employees with different start times on their alternating work day, their FLSA workweek can be different – four hours after the start time of their shift.
Pitfall #2 – Allowing Employees to Change or Switch Their Regular Day Off. Employers should be cautious of employee requests to change their regular day off because moving it will likely cause the employer to incur four hours of overtime liability. For example, if an employee who is off-duty every other Friday is scheduled to work this Friday, he/she might ask to take this Friday off and work the following Friday (the day he is ordinarily scheduled to be off duty). Because each 40 hour workweek is examined on its own, this scenario will result in more hours being worked in one of the two workweeks in the two week pay period. The best way to avoid this problem is to prohibit employees from changing or switching their regular day off.
Pitfall #3 – Allowing Employees to Come In and Leave Early. In addition to coming in and leaving early, employees who are permitted to come in and leave late on the alternating work day could also trigger overtime. Because the workweek in a 9/80 schedule begins four hours into their eight hour shift on the day of the week which constitutes their alternating work day, permitting an employee to work more or less hours before the four hour cutoff will cause overtime to accrue. For example, if an employee whose workweek starts at noon (because his regular Friday hours are from 8:00 a.m. to 5:00 p.m.) came to work at 6:30 a.m. on Friday and worked until 3:30 p.m., the employee would be owed 1.5 hours of overtime because the hours worked between 6:30 a.m. and noon would be in the first workweek of the two week pay period. Like the solution to Pitfall #2, employers can avoid overtime liability under this scenario by not allowing employees to adjust the start and end times of their shifts.
Pitfall #4 – Failing to Monitor When Lunch Is Taken. Failure to monitor lunches on the alternating day worked (e.g., Friday) could also inadvertently trigger an overtime obligation. For example, if an employee is scheduled to work between 8:00 a.m. and 5:00 p.m. on the alternating Friday and has an unpaid one hour lunch, the employee should work the first four hours (until noon), then take lunch, and return to work the last four hours (until 5:00 p.m.). However, if the employee decided to take lunch at 11:00 a.m., this would result in the employee working the last five hours after 12:00 p.m. thereby triggering one hour of overtime liability in the second workweek of the two week pay period. Thus, employers should emphasize to employees the importance of taking lunch after the first four hours of the alternating work day and periodically audit employee lunch breaks to make sure they are being taken at the appropriate time.
Public employers are encouraged to scrutinize their use of the 9/80 work schedule to see if any of the common mistakes are being made. This may require employers to separately examine each department, division or unit as there may be variations in each group’s practices.