Current through August 30, 2024
(a) An employee's regular rate is the basis
for computing overtime. The regular rate is an hourly rate figured on a weekly
basis. An employee need not actually be hired at an hourly rate. The employee
may be paid by piece-rate, salary, commission, or any other basis agreeable to
the employer and employee. However, the applicable compensation basis must be
converted to an hourly rate when determining the regular rate for computing
overtime compensation. Payment on a salary basis does not eliminate overtime
pay requirements. The following provisions apply for an employee whose work is
not exempt by law from overtime pay requirements, but is paid on a salary
basis:
(1) the employment contract must be in
writing and must set out the specific number of straight time and overtime
hours the employee is expected to work each day and each week; the contract
must establish a regular straight time hourly rate of pay and the appropriate
overtime rate with respect to the salary to be paid and the number of hours to
be worked; changes to the pay schedule of a salaried employee must conform to
the provisions of
AS
23.05.160;
(2) if a contract fails to establish a fixed
number of daily and weekly hours that the salary is intended to compensate, or
if the actual hours of work deviate from the hours specified in the contract
without a corresponding adjustment in hourly pay, the salary will be considered
to be compensation for an eight-hour work day and 40-hour workweek, and
overtime will be computed on that basis.
(b) In order to compute a regular hourly rate
for the purpose of determining the overtime rate for an employee who is paid
other than hourly or by salary, or if the employee's rate of pay includes
bonuses, the following provisions of 29 C.F.R. Part 778 apply:
(1) for a pieceworker,
29
C.F.R. 778.111;
(2) for an employee who works at two or more
hourly rates,
29 C.F.R.
778.115;
(3) for an employee who receives wages in a
form other than cash,
29 C.F.R.
778.116;
(4) for an employee who receives a
commission,
29 C.F.R.
778.117-
778.122;
or
(5) for an employee who receives
a bonus, 28 C.F.R. 778.208- 778.215.
(c) When computing an employee's hours for
the purpose of determining overtime, the employer shall count all hours the
employee worked during that week including periods of "on call" and "standby or
waiting time" required for the convenience of the employer which were a
necessary part of the employee's performance of the employment. However, if the
employee is completely relieved from all duties for 20 minutes or more during
which the employee may use the time effectively for the employee's own
purposes, then those periods need not be counted.
(d) The following are not acceptable methods
of complying with the payment of overtime provisions of
AS
23.10.060:
(1) guaranteed weekly pay for variable hours
plan ("Belo" contracts) established under sec. 7(f) of the Fair Labor Standards
Act of 1938, as amended (29
U.S.C. 207(f) as implemented
in
29
C.F.R. 778.402-
778.414);
(2) compensatory time (comp
time) off in place of payment for overtime; and
(3) flex-time or flexitime plans established
under
29 C.F.R.
778.114 providing a fixed salary for
fluctuating hours up to a predetermined maximum number of hours in a
workweek.
(e) Except for
an employee described in
8 AAC 15.908(c), an employee paid on a
daily rate whose work is not otherwise exempted from overtime pay requirements
under
AS
23.10.055 or
23.10.060(d)
must be compensated for overtime based on a written employment contract. The
following provisions apply for an employee paid on a daily rate:
(1) if the daily rate is compensation for a
set number of hours in a day, the written employment contract must set out the
applicable straight time and overtime rates;
(2) if the employee works overtime hours not
covered by the daily rate established in the employment contract, the employer
must provide for an adjustment to the employee's pay at the overtime rate for
(A) hours worked in excess of the established
daily number of hours; and
(B) all
hours worked on days worked after 40 straight time hours in a week;
(3) to maintain the hourly rates,
the employer must reduce the employee's pay when the employee works less than
the prescribed number of hours in a day; if the wages are not reduced, the
daily rate is considered to compensate an employee for a variable number of
hours worked and the overtime must be calculated and paid in accordance with
(4) of this subsection;
(4) if
there is not a written employment contract or if the daily rate provides
compensation for a variable number of hours worked, the overtime must be
calculated as follows:
(A) each week, the
employer must calculate the straight time rate of pay by dividing the total
amount paid at the daily rate by the total number of hours worked in the week;
and
(B) the employer must pay
one-half of the straight time rate established under (A) of this paragraph for
each overtime hour worked in the week to bring the employee's wages up to one
and one-half times the regular rate for hours worked over eight hours in a day
and over 40 straight time hours in a week; this calculation must be performed
separately each week.
Copies of the federal regulations cited in 8 AAC 15.100
may be obtained from the department's wage and hour administration office in
Anchorage, Alaska at 3301 Eagle Street, Suite 301 or by contacting the office
at Department of Labor and Workforce Development, 3301 Eagle Street, Suite 301,
Anchorage, AK 99503; telephone: (907) 269-4900.
As of Register 151 (October 1999), the regulations
attorney made technical revisions under
AS
44.62.125(b)(6) to reflect
the name change of the Department of Labor to the Department of Labor and
Workforce Development made by ch. 58, SLA 1999 and the corresponding title
change of the commissioner of labor.
Authority:AS
23.05.060
AS
23.10.060
AS
23.10.085
AS
23.10.095
