Controlling Off the Clock Work

Tyler works in your IT Department. He’s not the Director, but he is a trusted technician upon whom  many of your staff rely. He is non-exempt. Occasionally, Tyler works off the clock by troubleshooting for staff via  emails, text messages and occasional telephone calls.  His name and number are distributed to staff to encourage them to contact him if they have problems. A new IT Director is appointed and she and Tyler are like oil and water. Tyler submits his letter of resignation and along with it, a lawsuit for unpaid wages for time that he worked off the clock.

Off the clock work claims are one of the more challenging wage issues currently facing employers. One of the more frustrating aspects of this issue is that it is common for employees to work off the clock and not report it for a variety of reasons. Employees may, at the time, feel generous towards the organization, or don’t consider it much of an inconvenience and are willing to pitch in for the team. The only problem is that when off the clock works becomes an inconvenience, or the employee stops feeling so generous towards the organization, or doesn't feel like or want to be a part of the team, or is encouraged by others to seek pay for all that work, then the employee makes a claim. It’s often the first time that the employer is truly aware of the time put in off the clock.

Of course, the Fair Labor Standards Act requires payment of wages for time that an employer “suffered or permitted” an employee to work. So, how does an employer not only regulate off the clock work, but ensure that all work of that type is timely paid so as to avoid surprise claims and lawsuits?

Courts have provided some guidance on this issue. The recent Integrity Staffing Solutions case upheld reiterated that the work for which an employee seeks payment must be of the type that is integral to the employee’s job. Moreover, courts of appeals have also held that where employers have policies and procedures in place to allow for reporting of off duty work, they will not be responsible for wages if the employees fails to avail themselves of the procedures. Take the case of White v. Memorial Baptist Healthcare in the 6th Circuit Court of Appeals, for instance. White, a nurse, filed suit for overtime for time that she worked through meal breaks. The hospital had a policy in place addressing pay for missed breaks, and a procedure whereby employees completed a form notifying the employer of missed breaks so that they could be paid for the time. The court held that because White did not avail herself of this procedure, the employer couldn't be liable under the FLSA.

The lesson to be learned for employers is simple. While most employers have policies which require employees to obtain approval for overtime before working it, they should go a step further. Employers, like Baptist Memorial Healthcare did, should have a procedure for reporting off the clock work and a requirement that it be reported within the same pay period as it was worked. Further, employers who require their employees to submit a timesheet or report, should consider including on that document a statement that the time reported represents all of the employee’s work time for that pay period.  This may relieve the employer from liability for work about which it otherwise would have no knowledge.

Simple procedures such as this may reduce or eliminate not only the surprise claim for off the clock work, but also shares the reporting burden with the employee so that if a dispute arises, the employer’s records indicate that the employee was paid for all hours worked, as reported by the employee.