BOP NEWSLETTER • Summer 2022

Salary Pay to Avoid Overtime: Does it Work?

by Rebecca Boartfield

Q: I interviewed and offered someone a position at my business. Turns out, she is currently employed by a nearby business associate who is also my friend. The information she provided states she will not be leaving his office for another couple of months, and she has asked me not to contact her employer. As a friend, I feel like I should, but, as an employer, I need to respect her confidentiality. Are there any laws that address this? Am I allowed to tell him? 

A: That is a tough situation. Unfortunately, there is no law on this one way or another. Whether or not you withhold this information from the other business associate is entirely up to you.

In general, most would consider keeping it confidential as being the right thing to do even when no law requires that. Things could get messy if you told this employer and he ended up firing her as a result (or taking other adverse actions). That is why people want these things kept confidential – one never knows how the current employer will respond, and nothing prevents them from ending employment when they learn someone took a job elsewhere. It’s a risk. If something like that happened, the individual you hired could stir up problems for you, even if that didn’t rise to the level of a lawsuit or legal action.

In my opinion, your responsibility/obligation as an employer is greater than your loyalty to your friend. I would hope that your friend would understand the need to keep your business free of potential harm and damage even if it means not being as forthcoming as a friend.

Q: Is it legal for me to ask an employee not to share their wage with other employees? I know they talk, and I can’t do anything about that, but can we at least request that from someone?

A: As a result of the National Labor Relations Act and other state and local laws, employees are allowed to discuss their wages, working conditions, and benefits with each other. Since this is a protected right, employers should not take steps to prohibit those discussions. This would include asking or requesting them to not share this information with others. 

Q: We will be closed on Monday for a national holiday. This will be a paid holiday for those employees who are eligible. We will then work Tuesday through Saturday for a total of 40 hours. For those with holiday pay, they will receive 48 hours of pay for the week. Does that mean that Saturday should be considered overtime pay?

A: No, it should not. Federal law on overtime is based on time actually worked during the week. Since employees are not working on Monday, the holiday does not count towards overtime hours for the week even though some are being paid for the day. As a result, Saturday would only be overtime pay if one of your employees worked 40 or more hours between Tuesday and Friday.

Some states have daily overtime laws, which would still be in effect regardless of the holiday pay. For example, if any employee worked over 8 hours on any day in CA, overtime would apply even though the employee may not have worked over 40 hours for the week.

Q: This might not be a human resources issue exactly, but we have patients who try to bring their dogs into the office during their appointments. They are telling us the dog is a therapy dog. Can we request paperwork to prove this is accurate? Are there rules surrounding this that we should be aware of? Thank you so much for any assistance you can provide.

A: You’re right that this pertains to public accommodation laws rather than HR or employment, but we’ve been asked this before, so we can provide some information. The following is a link to a website that breaks this down really well and should provide the answers you need: https://beta.ada.gov/topics/service-animals/