Sounding the Alarm on Off-The-Clock Work

We are lawyers, not magicians. Yet, we have received perhaps more than our share of requests to turn back time.  If only that employer client could have it all back, to start out the right way on workplace timekeeping and compensation practices.

While we cannot put the proverbial toothpaste back in the tube, we can offer some tips on avoiding future wage-and-hour litigation disasters stemming from accusations that a company required or allowed employees to work off-the-clock without paying them.

1.  Understand the difference between “exempt from overtime” and “non-exempt” and ensure your human resources department is properly classifying employees.  A disproportionate number of salaried, supposedly “exempt” workers means there are probably errors in need of attention;

2.  You MUST pay non-exempt employees for ALL hours worked, even if management did not ask for the time to be spent or even if the work was against management’s directions.  The solution is appropriate discipline for violating applicable schedule and timekeeping rules, not to withhold pay;

3.  So that employees are on clear notice of those rules, ensure your handbook includes written policies that establish:

–       Workers are to keep standard work schedules and not to start early or stay over without management’s written authorization;

–       Off-the-clock work is not permitted;

–       Employees must log their working hours accurately;

–       Employees who violate hours and timekeeping policies will be disciplined;

–       Likewise, managers who authorize such violations, including off-the-clock work, will be disciplined; and

–       Employees need not fear retaliation for reporting any such violations;

4.  Maintain written timekeeping records – either hard copy and/or computerized – that require non-exempt employees to legibly and honestly document their own daily start, meal break, and departure times and, for each pay period, to verify in writing the accuracy of their report; and

5.  Ensure management is uniformly enforcing these policies and practices.