Dear Mr. Caston:
A question has arisen as to the accuracy of Attorney General Op. No. 97-338 that was issued to you and we are writing to clarify the opinion. You had inquired about the necessity of paying overtime for public employees in a forty hour work week in which there is a legal holiday, stating that numerous times emergencies have required that employees be called out at night or on a holiday, and it is the policy to pay straight time, but some are of the opinion it should be overtime.
This office stated that the Federal Fair Labor Standards Act is applicable to political subdivisions of the State and that "no employer shall employ any of his employees for a work week longer than forty hours unless such employee received compensation at a rate not less than one and one-half times the regular rate of pay." It was further stated that a holiday was a day from work with pay. It was then concluded that work time over the regular forty hour work week which included the eight hours of a holiday or emergency work would be overtime pay of time and a half.
This latter statement must be corrected to reflect that the time and a half overtime will only apply after forty actual hours of work when the work week includes a holiday. Although an employee will be paid for the holiday, time and a half will only apply after having worked 40 hours not including the day's pay for the holiday. In Joseph G. Morretti, Inc. v. Boogers, 376 F.2d 27(5th Cir. 1967) the court stated:
We especially point out that overtime for holidays, Saturdays, and Sundays are due only for that time in any particular week in which the employee actually worked more than forty hours. Moreover, mealtimes cannot be included as hours worked and neither can portal to portal travel be included as hours worked.
Therefore, to clarify the response to your inquiry, overtime of time and a half must be paid to public employees called on to work on holidays or nights when work at these times is in addition to having actually worked forty hours that same week.
We hope this clarifies when overtime of time and a half must be paid for public employees who work during any emergency on a holiday or at night, and regret if the earlier opinion has caused any problem.
Sincerely yours,
RICHARD P. IEYOUB Attorney General
By: __________________________ BARBARA B. RUTLEDGE Assistant Attorney General
BBR
c.c. W. Brian Babin