For employees who have alternative work schedules (e.g., 9/80), do campuses have the flexibility to temporarily modify these employees' workweeks in order to avoid paying overtime?
No, campuses do not have the flexibility to temporarily modify employees’ workweeks in order to avoid paying overtime. This applies whether the employee is on an alternate work schedule or not. Under the FLSA, hospitals and residential care establishments can use a fixed work period of 14 consecutive days, instead of the 40 hour workweek, for purposes of calculating overtime. To do this, the employer must have an agreement with the affected employee before the work is performed that defines that employee’s workweek, i.e. when that employee’s 14-day period will start and end.
The 14-day period can begin at any hour of any day of the week, e.g. at a time that does not coincide with the start of a day, such as 2 a.m. The 14-day period must be established with the intent that the period be permanent or used for a substantial period of time.
The University does have the flexibility to change the schedule of a non-exempt, non-represented employee to avoid paying overtime. For example, if an employee on a 40 hour per week schedule usually works 8 hours per day, and during a particularly busy Monday that employee works 10 hours, the University can change that employee’s schedule to only work 6 hours on Friday of that week to avoid overtime.
The ability of the University to change the schedule of a represented employee will depend on that employee’s labor agreement.