Although technology has made it easier than ever for employees to work remotely, out of the office, and after hours, the ability for a non-exempt employee to work off-the-clock poses a very real threat to employers that can result in serious penalties. While exempt employees do not have to keep track of their hours worked, non-exempt employees are required to report all hours worked and be paid overtime for all hours worked in excess of 40 hours in a workweek. Although courts have held that an “insignificant period of time” spent working off the clock is to be considered de minimis and does not require employers to compensate non-exempt employees for that time spent working, the Fair Labor Standards Act (FLSA) regulations state that a non-exempt employee working as little as 10 minutes per day is not to be considered de minimis. A non-exempt employee answering more than a couple of emails or taking a call longer than 10 minutes after hours may require those employees to be compensated.
Not only do employers risk FLSA lawsuits for failing to pay non-exempt employees for working off-the-clock, or to pay an overtime premium, employers may face Department of Labor (DOL) audits and investigations, or state agency audits and investigations, that may lead to hefty fines and large legal bills. Even worse, employees can recover “liquidated damages,” which is equal to the amount the employee is owed in unpaid wages, and the employee can also recover their attorney’s fees. Employees may also sue for unpaid wages on behalf of themselves and other employees similarly situated, which could lead to a possible class action under state laws or a collective action under the FLSA.
An employer’s liability in a lawsuit filed under the FLSA increases when employees are encouraged to respond to urgent email requests or frantic calls or text messages from managers. If an employer is made aware of a non-exempt employee answering texts or emails after-hours, those employees should be compensated for their time. However, employers should also note that ignorance is not an alibi and will not prevent a non-exempt employee from filing an action under the FLSA.
Fortunately, we have put together three tips to help employers protect against wage and hour claims.
Create and enforce a written policy regarding non-exempt employees working off-the-clock. This policy should explain when non-exempt employees are allowed to work overtime and must clearly set forth the procedure required for non-exempt employees to be authorized to work overtime. The policy should also include provisions stating that an employee’s failure to adhere to the rules will result in a disciplinary action, ranging from suspensions up to termination. However, employees must still be compensated for hours worked off-the-clock if the employer knew or had reason to know of the work.
Implement methods for non-exempt employees to track all work performed off-the-clock. Although the method of tracking time will depend on the industry and the technology available, it is important for employees to report the time they spend working after hours because an employer may not arbitrarily fail to count any portion, however small, of working time that employees are entitled to be paid.
Train supervisors and managers to avoid active or passive encouragement of non-exempt employees to work after hours. Educate managers and supervisors on the penalties for failure to pay for time worked and the amount of backpay and other damages employees may be entitled to should they bring an action against the employer. Supervisors must also be instructed to enforce the policies regarding working after hours, and must not ignore when a non-exempt employee is working off-the-clock. They must record the time the employee worked so they may be compensated for that time. Willful violations of wage and hour laws will likely lead to steeper penalties.