Is it legal if my fiancee’s pay is being split up between 2 checks so as not to pay her overtime?

She works at a national chin sandwich shop. She worked 86 hours in a 2 week period. The boss told her that she will only be paid 80 hours for the paycheck and will put the rest on the next check and will cut her hours so that my girlfriend won’t be over 80 hours. They said that they can’t pay overtime.

Asked on February 1, 2016 under Employment Labor Law, West Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

No, it is not legal, and your fiance may have a wage and hour complant she could bring to the department of labor and/sue (e.g. small claims court) over. Under federal law (e.g. the Fair Labor Standards Act or FLSA), overtime is paid *everytime* a worker works more than 40 hours in a week (it's based on weekly work, not on the payroll period). Say she worked 43 hours each week; she should have receive 3 hours overtime each week. If she worked 35 hours one week and 51 the next, she'd have gotten 11 hours overtime that second week. Etc.
The employer can, going forward, reduce hours to "make up" for overtime. Say that week 1 she works 44 hours: 40 hours regular and 4 hours overtime. 4 hours overtime = 6 hours regular pay. The employer could limit her to 34 hours work in week 2, to balance out the amount it is paying--that's legal. But if she *does* work overtime, she must be paid; the way to control overtime is by controlling hours worked, not refusing to pay for work and overtime actually done.

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