Non-Exempt Employee Labor Hour Flexibility

[popalock]

Simple question I am having the toughest time finding the answer too. 

As a Contracting Officer, and as a Contractor acting in a contract specialist support role, I have seen employees working under federal contracts offered a small amount of schedule flexibility within their standard 40 hour work week.  Let me throw out a quick scenario to get to my point:

Sally is providing basic administrative support under a services contract managed by the VA.  This services contract is subject to the SCA and all employees under this contract are non-exempt.  This is a FFP Labor Hour contract to which Sally is working 100% remotely and has pre-coordinated her core work hours with her Government Lead.  There have been a few occasions through performance of the contract where Sally had short medical appointments that fell within her core hours.  On those occasions, her Government Lead has simply allowed her to record her actual time worked for the day she had an appointment (6 hours), then work additional time (typically 30 min or so a day) throughout the week to make up for her missed time.  All actual time is reported as worked and at the end of the week, every week, Sally works her scheduled 40 hours.  No more / no less.  

Is there anything wrong with the above scenario?

Are there any overtime implications if a Non-Exempt employees works slightly over an 8 hour day to make up for missed time?

Does it end up being a wash if it all levels out to the standard 40 hour work week?

I ask because the above presented scenario seems to play out wildly different from agency to agency / COR to COR / etc...  This almost seems like a gray "no big deal" area that no one really concerns themselves with because it happens so infrequently.  However, it's not a big deal...until it becomes a big deal to someone and the only person adversely affected always ends up being the employee.  I'm just wondering if there is some actual legal guidance on this scenario that I've missed, or if this will always be more of a handshake type of understanding.  

Thanks.

[C Culham]

I will take a swing at this....

11 hours ago, popalock said:

Is there anything wrong with the above scenario?

For Sally and application of FLSA and SCA (Service Contract Labor Standards) none issue as she is working the 40 hours.  Here is a reference found in a quick internet search.  https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/Tab18.pdf

For the Government there may be a problem with regard to authority.   If core hours are simply "pre-coordinated" that says one thing to me.  A little slippage here or there is probably fine.   If the contract demands core hours its another unless the "lead" or COR have been given authority to approve minor fluctuations in core hours through the contractors  authorized representative.   

Like many contracts the scenario you have painted is one where the Government administers the labor hours like they are Government employees of sorts.   The real question is whether Sally is doing what her boss, the contractor, wants her to do in managing her hours pursuant to the contractors rules and that of the contract.  Again not a government issue unless the contractor is letting Sally do something that is not contract compliant.

11 hours ago, popalock said:

Are there any overtime implications if a Non-Exempt employees works slightly over an 8 hour day to make up for missed time?

Nope....40 hours in  a week has been met.  Remember it is a FLSA thing.

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/Tab19.pdf   https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs23.pdf

11 hours ago, popalock said:

Does it end up being a wash if it all levels out to the standard 40 hour work week?

I think the above addresses this.

 

11 hours ago, popalock said:

different from agency to agency / COR to COR

Probably because as I have pointed out it becomes a contract administration issue with regard to "core hours" and what is demanded by the contract.

 

 

[jtolli]

1 hour ago, C Culham said:

Nope....40 hours in  a week has been met.  Remember it is a FLSA thing.

 

 

 

I am not an expert at this, but have dealt with contracts in many different States before.  It is my understanding that if a State has laws that have overtime laws that differ from the FLSA, then the State laws also apply.  For example, in California any work over 8 hours a day is considered overtime.

See here: https://www.dol.gov/general/topic/workhours/overtime

"Some states have overtime laws. In cases where an employee is subject to both the state and federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher overtime pay)."

[here_2_help]

2 hours ago, jtolli said:

I am not an expert at this, but have dealt with contracts in many different States before.  It is my understanding that if a State has laws that have overtime laws that differ from the FLSA, then the State laws also apply.  For example, in California any work over 8 hours a day is considered overtime.

See here: https://www.dol.gov/general/topic/workhours/overtime

"Some states have overtime laws. In cases where an employee is subject to both the state and federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher overtime pay)."

Thank you. This was going to be my comment, as well. OT rules vary by state and the contractor needs to be aware of the state rules that apply to the location from where the employee is working.

[ji20874]

As Carl suggested, there are two entirely separate issues here.

(1) Payments to the contractor employee/compliance with Service Contract Act -- this is the contractor's business, and the matter is between the contractor and the employee.  The agency should not stick its nose into this, but should leave this between the contractor and DOL.

(2) Contract compliance -- if the contract requires core hour coverage, then the contractor needs to provide core hour coverage, period -- even a half-hour absence during the core hours is a failure or default.  Imagine the contract is for guards at gates -- the contractor must provide the core hour coverage -- if Sally (contractor employee) needs a half-hour off during core hours, the contractor must provide a substitute to cover the core hours.  

In the original posting, it seems the Government Lead is acting as the contractor employee's supervisor by approving time and granting credit hours and so forth -- I don't know the contract text so I don't know if this is proper or improper.  What does the contract say?