If I work for a security company, what are my rights regarding overtime pay?

UPDATED: Sep 29, 2022

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If I work for a security company, what are my rights regarding overtime pay?

Lately, I’ve been working a lot of overtime. My regular pay rate is $14.75 an hour. My Overtime rate at time and a half should be $22.13 an hour. The security company has been paying me less than that for my overtime. When I brought up the issue they told me that it is their policy to pay all of their supervisors time and a half of a regular Officer’s pay rate which is $10.60/hr. The overtime pay would come out to be $15.90. They say they can get away with doing this because I am covering shifts fo rregular paid Officers so I make their overtime pay instead of my own overtime pay rate. This seems wrong and illegal to me. Am I wrong? Can they get away with doing this or should I file a complaint?

Asked on August 11, 2015 under Employment Labor Law, Illinois


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

It potentially legal, but not necessarily the way they are doing it. An employer is allowed to have different pay rates for an employee for different tasks or aspects of his/her job, so the employer could legally have a policy that when employee A covers for employee B, A is paid at the lesser of A's or B's rate. If they did this, then overtime hours should be based on your average pay during that work week. For example, say you work 30 hours at a $14/hour rate and 20 hours at $10; your total base pay is $420 + $200 or $620, which for 50 hours total is an average rate of $620/50 or $12.40. The two hours you work overtime that week would be paid at 150% of (time-and-a-half) $12.40, or $18.60.

So, they can have differential rates for you, and they can pay you overtime based on the differential rates, not your own personal base rate, but:

1) They have to notify you of that in advance--all otherwise-legal rate or pay changes only take effect upon notice to the employee, so prior to them notifiying you of the differential rate policy, you should have been paid (including overtime) based on your normal base rate; and 

2) They can't pay overtime based on the lower rate, but rather need to base it on your average hourly rate that week. 

Based on what you write, you are likely owed some additional pay (e.g they probably calculated overtime low), but less than you seem to believe you are owed. Since there are obvious costs and issues with taking legal action against your employers, you need to consider carefully whether it is worthwhile either suing or filing a complaint with the department of labor.

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