overtime with different stores same company
I was wondering i was working for a franchise company that has 5 different stores. I worked at 3 of their different locations and received 3 separate paychecks 1 for each store. I get paid bi-weekly. My hours total were over 80 hours. Since it is the same company can they legally give me separate paychecks to avoid paying me overtime?
1 answer | asked Jun 18, 2009 7:14 PM [EST] | applies to Ohio
Answers (1)
Here is the test for "different employer" defense.
The answer to your question depends on whether the different franchise operations are independent companies or not. The Department of Labor limits the “second employer” defense to employers who were “entirely independent” and “completely disassociated” from each other.
The DOL uses the example of, in some cases, an employee works 40 hours for company A and 15 additional hours during the same week on a different job for company B. In this case it would seem that if A and B are acting entirely independently of each other with respect to the employment of the particular employee, both A and B, for overtime purposes, would count only the hours worked for them. If, on the other hand, the employment by A is not completely disassociated from the employment by B, the entire employment of the employee for both A and B should be considered as a whole for the purpose of the statute.
See Interpretative Bulletin No. 13, Paragraph 17, issued July, 1939, cited in Walling v. Friend, 156 F.2d 429, 432 (8th Cir. Mo. 1946).
In United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2nd Cir. 1960),one corporation made some of its guards available to an affiliated corporation for six hours a week. The corporations had the same officers and shareholders and were engaged in the same general enterprise. The court held that even though the employees were working for two separate employers and were paid by two separate employers, nevertheless, the defendant corporation acted directly or indirectly within the meaning of 29 USC § 203(d) in the interest of the other corporation in the employment. Accordingly, aggregation of the number of hours worked was
So, unless the franchise locations are completely independent, you probably have a valid overtime claim.
If you can put together a solid case that the franchise operations should be aggregated, feel free to give me a call.
posted by Neil Klingshirn | Jun 18, 2009 8:18 PM [EST]
The answer to your question depends on whether the different franchise operations are independent companies or not. The Department of Labor limits the “second employer” defense to employers who were “entirely independent” and “completely disassociated” from each other.
The DOL uses the example of, in some cases, an employee works 40 hours for company A and 15 additional hours during the same week on a different job for company B. In this case it would seem that if A and B are acting entirely independently of each other with respect to the employment of the particular employee, both A and B, for overtime purposes, would count only the hours worked for them. If, on the other hand, the employment by A is not completely disassociated from the employment by B, the entire employment of the employee for both A and B should be considered as a whole for the purpose of the statute.
See Interpretative Bulletin No. 13, Paragraph 17, issued July, 1939, cited in Walling v. Friend, 156 F.2d 429, 432 (8th Cir. Mo. 1946).
In United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2nd Cir. 1960),one corporation made some of its guards available to an affiliated corporation for six hours a week. The corporations had the same officers and shareholders and were engaged in the same general enterprise. The court held that even though the employees were working for two separate employers and were paid by two separate employers, nevertheless, the defendant corporation acted directly or indirectly within the meaning of 29 USC § 203(d) in the interest of the other corporation in the employment. Accordingly, aggregation of the number of hours worked was
So, unless the franchise locations are completely independent, you probably have a valid overtime claim.
If you can put together a solid case that the franchise operations should be aggregated, feel free to give me a call.
posted by Neil Klingshirn | Jun 18, 2009 8:18 PM [EST]
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