How do we handle employees working unauthorized overtime?
Managers often ask whether employers must pay nonexempt employees for overtime worked without permission, especially when employees have been told that unauthorized overtime is prohibited. For example, what should the employer do about the employee who works through what was intended to be an unpaid lunch or the employee who starts work early due to light traffic or an early train? How about the employee who takes work home and “works off the clock” to get caught up or who spends hours in the evening responding to emails from home? The short answer to the question of whether this time should be paid almost always is “yes.”
According to the regulations interpreting the Fair Labor Standards Act (the federal wage and hour law), “Work not requested but suffered or permitted is work time.”1 The employer “cannot sit back and accept the benefits without compensating for them.”2 As this language indicates, even a clearly communicated policy prohibiting unauthorized overtime does not relieve an employer from its legal obligation to pay employees for all hours worked. Therefore, if the employer in any way allows the employee to perform the work, the employer is liable for compensating the employee.
All is not lost, however…
Employers can take the following steps to manage and prevent unauthorized overtime:
- Actively discourage employees from working extra hours by designing, implementing and enforcing a clearly communicated policy regarding the recording of time.
- Don’t just stick the requirement in a policy handbook, however. Provide managers and supervisors with training to prepare them to enforce the policy in a consistent manner. Regularly remind employees and managers of the policy and that nonexempt employees must obtain supervisor approved to work overtime.
- If necessary, counsel and discipline employees for violating the policy.
Managers and supervisors are an employer’s best line of legal defense in this area. It is absolutely vital for employers to train supervisors on wage and hour law and the organization’s related policies and practices. Make sure they understand that employees must be compensated for all hours worked. If overtime is not going to be authorized, make sure that managers and supervisors set realistic expectations and do not pressure employees to “just get it done” by working off the clock. In addition, management should regularly check employees’ time records to ensure that all employees are properly reporting their time.
When in doubt about the appropriate course of action, employers should consult with experienced human resources professionals and/or labor and employment counsel. For MEA Members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
1 29 CFR §785.11.
2 29 CFR § § 785.13.
About the Author
Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.