I still get questions about pyramiding of overtime. Prior posts are here: 8/31/20; 12/4/17; 1/10/17; 4/1/16; 12/1/16; 1/2/13. Below are the most recent questions (in blue). Following those are my responses (in black).

Names have been changed to protect anonymity of the poster & their company.

From: Jane Doe, Esq.
Subject: Pyramiding of overtime

Message Body:
Good day –

I have been reviewing your blog posts during an adjournment of a contentious battle over overtime computation for employees working in a public penal facility. I am hoping you might have the time to provide some insight. If not that is okay, as your blog has already been very helpful in ordering my thinking on the topic.

Anyway, our collective bargaining agreement (CBA) does not contain “no pyramiding” language & defines overtime as:

Work performed in excess of 8 hours in any one workday is paid time and a half.
Work performed in excess of 40 hours in one workweek is paid time and a half.
Work performed in excess of 48 hours in one workweek is paid double time.

Going back years, the employer has been ignoring the hours over 8 in a work day and counting only hours after 40. Grievances were filed years ago – with delays due to hurricanes, changes of administration & most recently COVID, and so now resolution in favor of the officers will be quite costly.

Finally, we are proceeding to arbitration and the employer, who has never denied that they were wrong in ignoring the hours over 8 (there were fruitless attempts over the years to resolve that part at least) are now saying that what the union is asserting amounts to pyramiding overtime.

At the adjournment of the initial three days of arbitration, the arbitrator gave us a hypothetical to clarify our positions. She said: Suppose I have an employee working under these overtime provisions?

They work six days a week, 10 hours a day, and makes \$1/hr.
How much money do they make per week?

For the union I proposed the following answer:

REG = 32 @ \$1.00  ….  \$22.00
OT1 = 16 @ \$1.50  ….    \$ 14.00
OT2 = 12 @ \$2.00  ….   \$14.00
__________________________________

\$50.00    TOTAL

DAY 1
DAY2
DAY3
DAY4
DAY5
DAY6
REG (\$1.00)
8
8
8
8

OT1 (\$1.50)
2
2
2
2
8

OT2 (\$2.00)

The Employer proposed the following answer:

Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Total
Regular
8
8
8
8
8

\$30.00
Overtime
2
2
2
2

\$2.00
Overtime 2

2
10
\$14.00

Total
\$46.00

Questions:
Is what the union proposes “pyramiding”?
If so, how likely can I muscle through the argument that the CBA for most of the effective period contains no “no pyramiding” language AND was renegotiated without change or clarification last Summer.

All the best, and thanks for the information you have already posted for folks like me.

Sincerely,

Jane Doe

Here’s my response:

Thanks for your questions. It’s not the most glamorous of topics, but there’s always something new arising.

Regarding your questions, I don’t believe what you’re talking about is pyramiding. Unfortunately, the employer is wrong by stating that the 1st eight hours of work on day six (Friday) is paid at regular time instead of the overtime one rate of 1.5. I think that the employer just needs to understand that once the hypothetical employee hits the 40 hour mark by starting the sixth day of work, that employee is paid overtime for all of those hours. The employer at least got the two hours of double OT correct.

Generally speaking, pyramiding occurs when you apply a higher rate of pay to hours worked before that pay rate was in effect (E.g., try to apply the higher rates paid on Saturday or Sunday to overtime worked on Monday or Tuesday).

I’m still trying to wrap my head around it a bit.  Do you know of a good cite source that I can lean into in briefing this?  My problem is the employer has (very late in the game) started characterizing our method for applying the CBA as pyramiding, which is a very tricky straw man to contend with because I don’t see where this term has been well defined.

Incidentally the objection of the employer arises partly out of the fact that these employees at different times work double shifts, getting them to double overtime before they have attained 40 regular hours.  Example:

REG    8    8    8

OT1     8    8    8

OT2    16    16

The problem the employer has with that type of outcome, is that they have tied annual and sick leave accrual, as well as pension contribution, to every regular forty hours worked.  We argue that there is nothing in the CBA (or local statutory framework) requiring them to pin benefits accrual to a particular hour based on compensation rate.

In other words, they are looking to prove our plain reading common sense tabulation as wrong because they don’t like the result.  However, as I stated they didn’t seek to change a word of it at renegotiations.

Thanks again

Here’s my followup response:

The company has a point regarding tying sick leave and accrual of other benefits to regular hours worked, not to OT or premium hours. I’m not sure how the law is in Timbuk2, but there are some U.S. states mandating benefits or OT for only regular time; some industries also have their own customs or established practices. If the employer can establish a past practice (I.e., that the practice was known by all; out in the open/transparent; occurred on more than an isolated instance; and has been this way for some time), then perhaps they can win on that argument.

Finally, has anyone argued that the employer is doing a really bad job at scheduling work?

The post Even More Questions on Pyramiding of Overtime first appeared on Charles A. Krugel.