Fisher & Phillips LLP (05/28/12) John E. Thompson
In a “9/80” pay plan, the workweek and nonexempt employee schedule under the federal Fair Labor Standards Act is compressed so that employees work nine days in a two workweek period but not more than 40 hours in either workweek. Generally, nonexempt employees will work four nine-hour days; an eight-hour day divided in half, with the first four hours ending the first workweek at mid-day; and then another four nine-hour days to finish the second workweek. Employers do not have to pay overtime under the FLSA for either workweek if the employee adheres to this schedule, but overtime pay would be due to any nonexempt employee who works more than 40 hours in either workweek. Employers altering the FLSA workweek to implement 9/80 plans would be wise to use a U.S. Department of Labor protocol to determine whether employees are owed FLSA overtime for the pay period in which the changes were made.