Employers, Hands off that Time Sheet!
Unpaid wage claims are some of the most common claims employers are forced to defend. One reason is that an employee needs little supporting evidence to succeed in these types of claims. In fact, these claims usually go forward only with the employee asserting that he or she worked “X” number of hours more than his or her timesheets or payroll records reflect.
Employees and the attorneys representing them also have additional incentives to file these claims. Successful claims result in penalties of double or triple the unpaid wages and attorneys’ fees and costs are imposed on the employer, not the employee. To reduce the risk of claims, employers should ensure that their managers understand what time is considered “work time” for which non-exempt employees must be paid. By doing so, employers can reduce the risk of claims caused by well-intentioned managers giving the wrong instructions to their non-exempt employees regarding what time to record on their timesheets, or worse, adjusting what the employee recorded on the timesheet before submitting the timesheet to payroll.
An employer must pay a non-exempt employee for all time that the employee “suffers or is permitted” to work, even if the employer does not instruct the employee to do anything; even if the employee is not really doing anything to assist the employer; and even if the employee does not have permission to be working these extra hours. If the employer “knows or has reason to believe” that the employee is working, then the employer must compensate the employee for the time the employee worked.
Here are three common scenarios in which employers fail to properly compensate employees for working longer than their scheduled shifts:
1. Working “Off the Clock:”
An employee who comes in early, but doesn’t “clock in” until his or her set start time, generally must be paid for any time spent working during these pre-start time hours, even if the extra time was not approved, unless it is a very short amount of time that can be rounded to the start time in accordance with applicable regulations. The same is true for the employee who stays late or works during his or her lunch break after clocking out or works after clocking out for a lunch break. If a manager knows that an employee is working, he or she must ensure that the employee is paid for the time, even if the timesheet does not reflect it.
2. Working Outside of the Office:
Time spent working away from the office, such as working from home or checking and responding to email from an outside computer or mobile device, may be considered compensable time if it is for longer than what the regulations consider a de minimis amount of time. Employers should insure that employees working outside of the office are compensated for that time.
3. Unapproved Overtime:
An employer must pay overtime at the proper premium rate to an employee who works longer than the scheduled workweek for any additional hours worked. This is true even if the employer has a written policy requiring the employee to have manager approval before working overtime. In addition, if the additional hours result in the employee working more than 40 hours in that workweek, then the employer must pay the employee for the overtime at the proper premium rate. The employer can discipline the employee for failing to get advance approval, but cannot refuse to compensate the employee for the time.
By training managers on these three compensable time issues, employers can reduce the risk of being confronted with wage and hour claims brought by current or former employees.
Julie Reddig is an employment attorney at Lerch, Early & Brewer who defends management in a broad range of matters and disputes involving employment and the workplace, including wage and hour investigations by state and federal officials. For more information on wage and hour claims, contact Julie at (301) 961-6099 or firstname.lastname@example.org.