One of the most common wage related allegation made by employees is that they performed work-related activities but were not paid for that time. This is referred to as off-the clock work claims. This a very difficult area since overtime sometimes needs to be authorized by the employer. It is not rare to find company policies stating that overtime needs to be pre-approved. However, policies of this kind may constitute a violation of the Fair Labor Standards Act (FLSA) and it is not enough for a company to have set up a policy warning employees that their non pre-approved overtime work may not be compensated, to be off the hook. However, the FLSA does not go as far as to forbide employers from having or implementing such policies. The FLSA does not authorize employers to withhold payment of employees who worked unapproved overtime because it would constitute an hour and wage violation.
Under the FLSA employers have an obligation to pay its employees for all the hours worked. As a consequence the employer must be careful as to what type of work he authorized because this will put him under a legal duty to compensate his employees for the work done. According to Section 785.11 of the (FLSA) regulations, “Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, and prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.”
As a consequence it is the employer’s responsibility to enforce his policies against unapproved overtime by communicating clearly about his policy (through managers or supervisors for instance) as stated in Section 785.13 of the FLSA states, “In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.”
However, as stated in Badgett v. RentWay “if an employee is paid at a rate at or above $ 5.15/hour (the federal minimum wage is $7.25 per hour effective July 24, 2009) for all hours the employee actually worked, there is no violation — even if the employee is paid less than his/her regular wage rate for the hours worked.” In other words, under the FLSA there is no remedy for an employee who has worked overtime unless the employer’s failure to compensate for overtime would result in the employee not earning minimum wage or unless the uncompensated hours would have resulted in the employee working over 40 hours in the work week.
If you believe you may have a claim for overtime pay against your employer, please contact The Harman Firm, LLP.