18 | Classification Guidebook © 2024 Seyfarth Shaw LLP | www.seyfarth.com B. Possible Data Sources to Use in Determining Overtime Hours for Back Pay Purposes The sources of data for estimating overtime hours worked by an employee depend on highly individualized factors such as the employer’s business and systems, the employee’s work and work setting, and other unique considerations. Below is a list of potential sources of data that an employer could draw upon to estimate hours worked, depending on its unique circumstances. 1. Logs of electronic key/badge swipes showing when the employee entered and exited the building or worksite 2. Logs showing the time that a building or work area alarm was armed and disarmed 3. Phone log on/off times 4. Volume of calls or emails if position spends substantial time communicating via phone or email 5. Computer log on/off times 6. Email records 7. Work schedules 8. Manager observations 9. PTO or leave of absence records. 10. Amount of work completed by the employee if the employer knows how many hours it takes for most employees holding that position to complete similar work C. Sample Back Overtime Pay Calculations and Considerations Assume that an employee earns a weekly salary of $860 and, over the course of two years without any whole weeks off, has worked an average of 4 overtime hours per week. Here, back overtime pay using a half-time method would be $4,065.45, calculated as follows: ($860 per week 44 hours per week) x 0.5 x 4 overtime hours x 104 weeks Back pay using a time and one-half method would be $13,416.00, calculated as follows: ($860 per week 40 hours per week) x 1.5 x 4 overtime hours x 104 weeks Whether to apply a half-time or time and one-half method is an important decision. There is ample case law supporting use of the former in cases involving misclassified employees who received a predetermined salary for all hours worked. The approach is not without complexity or risk, however, and there are some states where half-time is not allowed. Employers should consult with legal counsel before undertaking any back wage payment process, including (but not limited to) the decision how to calculate back wages.
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