Can My Employer pay my overtime at a lower wage than my regular hourly wage?

UPDATED: Oct 1, 2022

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Can My Employer pay my overtime at a lower wage than my regular hourly wage?

I make $16 per hour. I recently worked 44 hours overtime. My overtime was paid at $130 per hour ,plus time and a half, which is 1 pay grade lower then myself. When asked about it, my boss told me that he can only bill the client I do contract security for 40 regular hours at my rate of pay, so he dropped my pay grade down to pay me the overtime. Isn’t this against the Fair Labor Laws?

Asked on December 3, 2018 under Employment Labor Law, Georgia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

It would be legal IF--
1) You'd have advance warning of it;
2) The overtime work was distinctly different work than your "regular" work. For example, say you do both security and had a chance to earn extra hours by doing maintenance, too. Security and maintenance are different jobs, and can be paid at different rates; therefore, if the overtime hours in this example were from the lower-rate job, overtime would be calculated at the lower rate. But this is legal only because you have essentially two different jobs, even if for the same employer.
So the above said, the opposite is also true: for doing the same work, all hours should be paid at the same rate, including overtime (i.e. overtime based on your regular rate); and without notice, no changes in rate or pay are legal.
Therefore, it appears this is a violation of the labor laws. What they can and cannot bill the client for is irrelevant. You could contact the department of labor to file a wage and hour complaint. But before you do, be aware that there is a legal thing the employer could do instead to cap pay: they could reduce your base pay so that your base plus overtime only works out to what the client will pay them. So consider whether complaining about this conduct, given that potential alternative, is worthwhile.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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