(1) Overlapping when change of workweek is made. As stated before, the beginning of the workweek may be changed for an employee or for a group of employees if the change is intended to be permanent and is not designed to evade the overtime requirements of the Law. A change in the workweek necessarily results in a situation in which one or more hours or days fall in both the "old" workweek as previously constituted and the "new" workweek. Thus, if the workweek in the plant commenced at 7 a.m. on Monday and it is now proposed to begin the workweek at 7 a.m. on Sunday, the hours worked from 7 a.m. Sunday to 7 a.m. Monday will constitute both the last hours of the old workweek and the first hours of the newly established workweek.
(2) Computation of overtime due for overlapping workweeks.
(a) General rule. When the beginning of the workweek is changed, if the hours which "fall within" both "old" and "new" workweeks are hours in which the employee does no work, his statutory compensation for each workweek is, of course, determinable in precisely the same manner as it would be if no overlap existed. If, on the other hand, some of the employee's working time falls within hours which are included in both workweeks, the Department as an enforcement policy, will assume that the overtime requirements of section 39-3-405 MCA of the Law have been satisfied if computation is made as follows:
(i) Assume first that the overlapping hours are to be counted as hours worked only in the "old" workweek and not in the new; compute straight time and overtime compensation due for each of the 2 workweeks on this basis and total the two sums.
(ii) Assume now that the overlapping hours are to be counted as hours worked only in the new workweek and not in the old, and complete the total computation accordingly.
(iii) Pay the employee an amount no less than the greater of the amounts computed by methods (i) and (ii) .
(b) Application of rule illustrated. Suppose that, in the example given, the employee, who receives $2 an hour and is subject to overtime pay after 40 hours a week, worked 5 hours on Sunday, March 12, 1972. Suppose also that his last "old" workweek commenced at 7 a.m. on Monday, March 6, and he worked 40 hours March 6 through March 10, so that for the workweek ending March 12, he would be owed straight time and overtime compensation for 45 hours. The proposal is to commence the "new" workweek at 7 a.m. on March 12. If in the "new" workweek of Sunday, March 12, through Saturday, March 18, the employee worked a total of 40 hours, including the 5 hours worked on Sunday, it is obvious that the allocation of the Sunday hours to the old workweek will result in higher total compensation to the employee for the 13 day period. He should, therefore, be paid $95 (40 X $2 + 5 X $3) for the
period of March 6, through March 12, and $70 ($35 X $2) for the period of March 13, through March 18.
(c) Nonstatutory obligations unaffected. The fact that this method of compensation is permissible under the Montana Minimum Wage Law when the beginning of the workweek is changed will not alter any obligation the employer may have under his employment contract to pay a greater amount of overtime compensation for the period in question.