Eight & Eighty Overtime System

What is the “8 and 80” Overtime System?

Generally, an employer is required to pay overtime compensation for any hours worked in excess of forty in a workweek. 29 U.S.C. § 207(a). However, the federal Fair Labor Standards Act (“FLSA”) provides for an exception for certain health care establishments, which are permitted to use the Eight and Eighty Overtime System.

Specifically, the FLSA requires hospitals and residential care facilities on the “8 and 80” plan to pay employees, who work more than 8 hours in a day or 80 hours in a two-week period, one and a half times the employees’ “regular rate” of pay. 29 U.S.C. § 207(j).

To Whom Does the “8 and 80” Exception Apply?

By its plain terms, the “8 and 80” exception applies only to “a hospital or an establishment which is an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises.” 29 U.S.C. § 207(a) (emphasis added); see also 29 C.F.R. § 778.601 (statutory provision provides exemption “for hospital and residential care establishment employment”) (emphasis added).

Does the FLSA Prohibit Employers from Abusing the “8 and 80” System?

Yes. Employers cannot lawfully avoid the FLSA’s overtime provisions “by setting an artificially low hourly rate upon which overtime pay is to be based and making up the additional compensation due to employees by other means.” 29 C.F.R. § 778.500(a). The FLSA also prohibits employers from adopting “split-day” plans in which the employee’s hours are arbitrarily divided in such a way as to avoid overtime payments. Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 40 (1944); 29 C.F.R. § 778.501. Both types of plans work in a manner so that employees do not earn overtime compensation, regardless of how many hours they worked.

If your employer has used the “8 and 80” system to deny paying you all overtime compensation to which you are entitled, our lawyers are ready to speak with you about possible legal claims.

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