Is there a cap on overtime?

It is DTRH’s official reading of whether there are additional requirements, limits or parameters for overtime work in Puerto Rico, beyond the extraordinary pay. The opinion reviews Act No. 379 of 15 May 1948, Supreme Court case law and the Constitutional Assembly debate, and concludes there are none.

It matters to non-exempt private-sector employees covered by Act 379-1948. Article 13 of that Act lists who it does not cover, among them administrators, executives and professionals and persons employed by the Government of Puerto Rico.

• That the hours worked fall into one of the overtime categories of Article 4 of Act 379-1948.Verified against the official source
• That they be paid at no less than time and a half the rate agreed for regular hours: that is the only requirement the law imposes for overtime work to be lawful.Verified against the official source

Information pending verification.

1. 1

   Step 1: The conclusion, plainly

   The opinion puts it thus: at present there are no working-day provisions setting additional requirements for overtime work or limiting it, subject to the extraordinary pay being met. The overtime provisions are limited to setting the wage rate and the penalties for not paying it. Setting limits has been delegated to the Legislature should it consider it necessary, and to date it has not done so.

2. 2

   Step 2: What was repealed, and why

   The repealed Act No. 49 of 7 August 1935 forbade requiring or permitting an employee to work more than eight hours in a calendar day, save an extraordinary event or an emergency the statute listed and the Governor had to declare, at double pay. Without that exception and that permission, work could only extend to the ninth hour, paid double. Violations were crimes, with jail or fine, and the Act was silent on civil remedies for the worker: past the ninth hour there was no overtime pay, there was illegality. In Cardona v. Corte, 62 DPR 61 (1943), the Supreme Court noted that an absolute ban with criminal sanction was ineffective because it was hard to enforce, and that the formula the Fair Labor Standards Act adopted in 1938 "virtually works by itself". The sentence that sums up the doctrine is the Court’s own: workers’ health is preserved and work is distributed by discouraging overtime, not through criminal prosecution, but by making it prohibitive through its high cost.

3. 3

   Step 3: The constitutional debate almost nobody cites

   The text originally proposed for Section 16 of the Bill of Rights allowed work beyond eight hours only in special circumstances and with additional compensation. That ingredient was removed. Mr Gutiérrez Franqui explained the amendment: Puerto Rico’s legislation rests on the doctrine that the most effective way to secure the eight-hour day is by making work past eight onerous for the employer, and that the remedy is neither to ban it nor to require special circumstances to concur. Mr Padrón Rivera further moved to amend the text so that overtime would in no case exceed two hours a day or eight a week: that amendment was defeated. In A.D. Miranda, Inc. v. Falcón, 83 DPR 735 (1961), the Supreme Court confirmed the constitutional rule permits a day beyond eight hours provided pay of no less than time and a half is given, with no special or emergency circumstance needed.

4. 4

   Step 4: What counts as overtime

   Article 4 of Act 379 lists five: hours worked beyond eight in any calendar day, unless the employer has established an alternate twenty-four-hour cycle with at least eight hours between consecutive shifts; those beyond forty in any work week; those worked during days or hours in which an establishment must remain closed to the public by legal provision; those on the seventh consecutive workday, which is the weekly rest day; and those beyond the maximum daily hours set in a collective agreement.

5. 5

   Step 5: The two exceptions the law does allow

   By agreement, and only within limits. First: in alternate weekly work itineraries a work week of no more than forty hours may be agreed in writing with the employee, with daily schedules not exceeding ten hours a day, and those hours are not overtime if those limits are not exceeded. Second: the employer may grant an employee’s request to make up hours not worked in the week for personal reasons, and they are not overtime if worked in the same week, without exceeding twelve hours in a day or forty in the week.

6. 6

   Step 6: What happens if they are not paid

   Two routes, and the opinion cites them. Under Article 10, any employee paid less than what is owed for overtime is entitled to recover from the employer, by civil action, the unpaid amounts plus an equal sum as liquidated damages, plus the costs, expenses and attorney’s fees of the proceeding. And under Article 15, an employer that fails to pay the stipulated overtime rate shall be punished by a fine of not less than fifty dollars or jail for a period of not less than fifteen days, or both at the court’s discretion; on repeat, a fine of one hundred to five hundred dollars or jail of thirty to ninety days, or both.

7. 7

   Step 7: The counterweight: health and safety

   The opinion itself clarifies it in closing, and it is worth keeping to hand. There may be occupational health and safety reasons limiting an employer from requiring or permitting excessively long shifts. Section 16 of the Bill of Rights recognises employees’ right to protection against risks to health or personal integrity at work, and Act No. 16 of 5 August 1975, the Occupational Safety and Health Act, requires employers to provide safe and healthy working conditions and employment free of recognised hazards that may cause death or physical harm. Federal rules or statutes may also limit shifts by industry, post or specific task, especially those considered hazardous. Long working hours may increase the risk of injuries and accidents, affect health and increase fatigue, and the Secretary asks employers to assess those risks.

A claim for unpaid overtime goes to DTRH’s Bureau of Labor Standards or to court, by the ordinary route or the summary procedure. Complaints about unsafe conditions go to PR OSHA.

• Believing an emergency or special circumstance is needed for overtime to be asked of you: the Constitutional Assembly removed that requirement in 1952.
• Citing Secretary’s Opinion 91-2 of 1991 as if it still described the law.
• Thinking there is a cap of two hours a day or eight a week: that amendment was defeated at the Assembly.
• Accepting an alternate weekly itinerary of more than ten hours a day or more than forty a week without overtime pay.
• Making up hours outside the same week, or beyond twelve in a day, and having them not counted as overtime.
• Forgetting the civil remedy includes an equal sum as liquidated damages, plus costs and attorney’s fees.
• Looking to Act 379 for protection against exhausting shifts: that discussion goes through occupational safety and health.

These are the government pages this guide is based on.

• Departamento del Trabajo y Recursos Humanos (DTRH)

  Departamento del Trabajo

  www.trabajo.pr.gov

• Department of Labor and Human Resources — Secretary’s opinions

  dtrh

  www.trabajo.pr.gov