Section 8.15.100. Payment for overtime.

	(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 (1) of this subsection 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.  

Authorities

23.05.060;23.10.060;23.10.085;23.10.095;44.62.125

Notes

Authority

AS 23.05.060 AS 23.10.060 AS 23.10.085 AS 23.10.095 Editor's note: Copies of the federal regulations cited in 8 AAC 15.100 may be obtained from the Department of Labor and Workforce Development, Wage and Hour Administration, 1251 Muldoon Road, Suite 113, Anchorage, AK 99504; telephone: [phone]. 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.

History

Eff. 12/9/78, Register 68; am 9/28/85, Register 95; am 4/29/99, Register 150; am 3/2/2008, Register 185

References

8.15.100