Off-the-Wall Judgments/Settlements in Off-the-Clock Cases

Virtually every week we hear about another employer allegedly requiring, encouraging or tolerating non-exempt employees working off the clock.  Even large employers with robust compliance programs are not immune to such attacks.  It takes just one manager to edit down an employee’s time to stay within budget—true wage theft—and the legal ball may start rolling.

It was an honor to have published an article for Fortune on wage and hour issues in general and off-the-clock issues in particular:

Here are 10 steps you can take to minimize your legal exposure to off-the-clock cases:

1.         Train supervisors that they cannot require, encourage or even suggest that non-exempt employees work off-the-clock.

2.         Let supervisors know that, if they break this rule, they will be subject to discipline, up to and including discharge.

3.         Train supervisors to report to HR  if they know, or have reason to know,  that an employee may have worked off-the-clock (even if the employee has not said anything).

4.         Develop a procedure by which HR speaks with employees about whom reports are made to determine  if they have worked off-the-clock and then sure that they are properly paid.

5.         Develop a policy that prohibits off-the-clock work which makes clear that employees must record all time worked.

6.         Develop a complaint procedure with appropriate assurances of non-retaliation so that employees can report concerns that they may have in this area without fear of retribution (broadly defined).

7.         Determine whether  question(s) or attestation(s) can be included in your time keeping system that asks employees if they have done any work off-the-clock so you can follow up with the employees, capture any time worked but not recorded and then pay them for it.

8.         Establish clear rules about whether and when employees can work remotely, such as checking e-mail, and how to ensure time is properly documented and paid.

9.         Establish clear rules on when overtime can be worked (for example, only with permission or if emergency circumstances); if an employee works overtime that he should not have, manage his/her performance, not his/her pay.

10.       Review supervisory changes/edits periodically to make sure that supervisors do not reduce the time of their subordinates so that they come in under budget.

Of course, some of these are best practices as opposed to legal mandates.  But best practices in this area can save a lot of money.

Under federal law, if a violation is found willful, you may be required to pay double what is owed to the employee, interest and two sets of attorneys’ fees, yours and the employees. Plus, a longer statute of limitations may apply.

And, under federal and state law, in some cases, there can be criminal liability.

Plus, state law damages may be even greater.

Have your attention?