The Overtime Dilemma

A Paralegal’s Dilemma: Is he/she eligible for overtime pay for working through the lunch hour?

This scene is common in law firms across the country. Perhaps it’s even happened to you:

?????????????It is 11:56 am on a Thursday in March. Patti Paralegal has been reviewing medical reports all morning and is looking forward to getting out of the building during her lunch hour.

Patti is expected to work from 8am to 5pm and to take a one-hour lunch break away from her desk. This gives her a 40-hour work week.

Patti grabs her purse and is on her way out of her office when her supervising attorney, Bob Lawyer, stops her. He gives Patti a file and he needs a contract completed for his client. Then Bob tells Patti he’s going to lunch and to just put the contract on his desk when it’s finished.

Patti takes the file and returns to her desk, where she works on the contract while she eats an apple and some almonds that pass for her lunch.

Here’s the scoop: Paralegals are generally considered by the U.S. Department of Labor to be nonexempt employees under the Fair Labor Standards ACT (FLSA).

This non-exempt status means that Paralegals are entitled to overtime pay for any hours worked in one week in excess of 40 hours. This article is not written to debate exempt/non-exempt status of paralegals. There are many opinions and if you disagree you should take that up with the Department of Labor. Good luck with that.

Fact Sheet No. 22 published by the U.S. Department of Labor, Wage and Hour Division addresses hours worked under the FLSA concerning what constitutes compensable time under the Act. The FLSA has determined that employees may not be employed for more than 40 hours in a week without receiving at least one and one-half times their regular rate of pay for any hours worked over 40 hours. (Note: this applies to all employees who are considered non-exempt.)

The Fact Sheet goes on to state:

“Rest and Meal Periods … Bona fide meal periods (typically 30 minutes or more generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform duties, whether active or inactive, while eating.

“Typical Problems: Problems arise when employers fail to recognize and count certain hours worked as compensable hours. For example, an employee who remains at his/her desk while eating lunch and regularly answers the telephone and refers callers is working. This time must be counted and paid as compensable hours worked because the employee has not been completely relieved from duty.”

If Patti’s lunch break is interrupted 3 times a week, she will have worked an additional 3 hours beyond what’s expected. Any time Patti works over 40 hours in one week, she is entitled to overtime pay at one and one-half times her hourly rate of pay.

What should Patti (and you) do?

First, Patti should tell Bob she’s just about to leave for lunch and ask if the work must be done immediately. Bob may not be expecting her to work through lunch – she may only be assuming so.   Chances are the project can wait until she returns from lunch and then there’s no problem.

If the work cannot wait, Patti should explain that this will make her entitled to overtime pay because she will be working more than 40 hours that week.

What if Bob tells Patti that if she works through the lunch hour, she can leave an hour early on Friday? This is perfectly acceptable since technically she wouldn’t go over the 40 hour total hours work. Total hours would be determined by totaling hours worked in the entire work week.

Your challenge: Be sure your employer is aware of the overtime pay rules for non-exempt employees. Then be sure you are paid fairly for ALL the hours you work.

For more information see Section 13(a)(1)Fair Labor Standards Act (FLSA).

© 2015 Vicki Voisin, Inc.  Do you want to use this article in your newsletter, ezine or Web site? You can, so long as you include this entire blurb with it:

Vicki Voisin, “The Paralegal Mentor”, delivers simple strategies for paralegals and other professionals to create success and satisfaction by setting goals and determining the direction they will take their careers. Vicki spotlights resources, organizational tips, ethics issues, and other areas of continuing education to help paralegals and others reach their full potential. She is the co-author of The Professional Paralegal: A Guide to Finding a Job and Career Success. Vicki publishes Paralegal Strategies, a weekly e-newsletter for paralegals, and hosts The Paralegal Voice, a monthly podcast produced by Legal Talk Network.

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