overtime charges after 28 hour work week, not 40

[milton glick]

Jurisdiction

New Jersey

I hired an aide through an agency 30 hours weekly. I found out last month I've been paying overtime for any hours over 28 because the aide has another job for a couple hours before he works here. I was never informed of this, I could have easily done 5 hour days if I had know I was paying overtime. Shouldn't I only have to pay OT if he works over 40 hours for me, not his total hours he works for others.

 

[army judge]

Read your contract with the agency.
The easiest solution is amend the contract to five hour days, NOT to exceed 25 hours each week.

Make sure it's done in writing, agreed to by both parties (you & agency), easy peasy.

Fighting over those hours just ain't worth the aggravation, but fixing it should be easy.

 

[Betty3]

You don't have to pay OT if he works 40 hrs. or less a week for you if:
If all the relevant facts establish that two or more employers are acting entirely independently of each other and are completely disassociated with respect to the employment of a particular employee, who during the same workweek performs work for more than one employer, each employer may disregard all work performed by the employee for the other employer (or employers) in determining his own responsibilities under the [Fair Labor Standards] Act. [29 CFR 791.2(a)]

 

[ElleMD]

It sounds like the agency is billing you and is the one actually paying the employee. In that case, the hours that person is working for the agency at two different clients is subject to OT, assuming they are not otherwise exempt https://www.dol.gov/whd/regs/compliance/whdfs25.pdf. Whether you as the client should be paying a premium or not depends on your contract with the agency.

If you are hiring the person directly, look at the link above. You are not responsible for OT based on the employee having a separate job elsewhere, paid by someone else.