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Labor, Employment and Benefits
Newsletter - October 2007
 
In this Issue...
 
STATE-BY-STATE ROUNDUP - Georgia – Employees May Be Paid at Two Different Rates to Perform Similar Work
 
 October 8, 2007
 

The Eleventh Circuit recently held that a school board’s practice of paying bus drivers and monitors different rates of pay based on the routes they drive, and calculating overtime based on a “blended rate” does not violate the Fair Labor Standards Act (FLSA).

Bus drivers and monitors working for the Bibb County, Georgia Board of Education receive different pay rates based on the type of routes they drive. For regularly assigned routes, pay is based primarily on employees’ seniority. For other routes, such as field trips and after-school routes, bus drivers and monitors are paid a set amount. The school board blends the rates for regular and other routes and then calculates overtime pay based on the blended rate.

In Allen v. Bibb County, No. 06-12131 (11th Cir. Aug. 17, 2007), the plaintiffs argued that the school board’s practice of paying a blended overtime rate violates the FLSA’s requirement that overtime be paid at one and one-half times an employee’s regular rate of pay. According to the employees, the use of different rates of pay and a resulting blended overtime rate is not permitted because employees who drive different routes are not engaged in two or more different types of work.

The Court rejected the plaintiffs’ argument, explaining that it was based on the incorrect assumption that the rate paid for regular bus routes is an employee’s regular rate of pay. Under the FLSA, the “regular rate” is based on “all remuneration for employment paid to, or on behalf of, the employees.” 29 U.S.C. § 207(e). When a bus driver drives regular and other routes in a single workweek and receives two different rates of pay for those routes, the combined pay must be used to calculate overtime. An employee’s regular rate is then determined by dividing the total remuneration by the number of hours actually worked. The resulting blended rate is appropriately used for purposes of calculating overtime pay. This same analysis applies generally to employees performing two different non-exempt jobs.

For more information, email Kelly DeWitt at kelly.dewitt@hklaw.com or call toll free, 1-888-688-8500.

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