Special Report

Hunter1

[font size="1" color="#FF0000"]LAST EDITED ON 12-14-04 AT 11:01AM (CST)[/font][br][br]In the latest H R Executive "Special Report", there is a statement on page 44 that basically says that if an employee is working unauthorized overtime that you have to pay her the first time, but if you warn her that time, then you don't have to pay her the next time she works unauthorized overtime. Is there case law to support this position? My sense of the situation is that you'd still have to pay her the second time, but you'd continue the progressive discipline process and potentially suspend/terminate her. Still, the employee worked the hours and "suffered or permitted" seems to apply.
Edit: The Report further states on page 31 that if your hours are from 8:00 am to 5:00 pm and a non-exempt employee regularly clocks in and out five minutes before and after the shift that you would have to pay for the accumulated extra time. Again, unless there's case law to support this, I think the five minutes can be disregarded or taken care of by a tenth of an hour or quarter hour pay policy. All employees cannot be lined up at the time clock at exactly 8:00 and 5:00 with no early or late punches allowed.

ray a

I agree, Hunter. Just looked it up in the report, and reads just as you say. My handy dandy legal books says, "...An employer is considered to have allowed an employee to work OT if it knew or should have known that an employee was on the premises working..." And goes on to say, OT compensation is due. I would hold the supervisor responsible for any unauthorized OT - they should have known about it. And I would use the disciplinary process with the ee who disregards OT policy.

Dasher

Me, too. The report is off base.

Julie A

I am the author of the report in question.

If I could write the report over again, I would omit the statement that it is OK to refuse payment for overtime worked. The rest of my discussion of unauthorized overtime (pages 43-45) explains at length that companies are obligated to prevent employees from working unauthorized overtime if they want to avoid overtime liability. It also suggests many ways for them to do so. What I should have said is that when an employee repeatedly violates a no-overtime rule, the employer may be able to dock her pay under a disciplinary policy that complies with the new FairPay regulations regarding disciplinary suspensions (discussed at pages 21-22 of the report).

As for your second concern, I stated that employers should pay employees overtime if they "regularly" clock in 5 minutes early and leave five minutes late. By "regularly," I meant an intentional and consistent habit or practice, not an isolated incident caused by crowding at the time clock. I would refer you to the following regulations:

29 C.F.R. 785.47 ("In recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee's fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him." (The regs contain numerous case citations, including Hawkins v. E. I. du Pont de Nemours & Co. (E.D. Va., 1955), which held that 10 minutes a day is not de minimis.))

29 CFR 785.48 ("It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees' starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.")

In short, I don't think that rounding hours worked up and down to the nearest quarter hour is the same thing as routinely disregarding the fact that an employee regularly works an extra ten minutes every day. The reg assumes that there will be times when the employee benefits from such a rounding practice, but under my scenario, she would not. Rather, under my scenario, such a practice would result in a failure to compensate the employee for all the time she actually worked.


Julie Athey

Hunter1

Thank you, Julie for the response. I, too, have written things which, in retrospect, I would have written differently. We're all 'experts' when critiquing someone else's work, but when invited to do a submission for one of your publications, I declined.

joycel

So how would you handle this? We are a small (55 employees) company with a lateral organization -- no supervisors or managers (work in a team structure). In addition, we offer flex time. There is no time clock (and if the Founders have their way there never will be). In fact, if the President had his way we wouldn't do time accounting at all as he wants the employees to concentrate on their work, not on the clock. He has recognized that by law we have to have some record of time in/out and total hours so we have a basic timecard on line that feeds into a master time sheet. Opportunities for OT are few and far between. We have a written policy stating that any requests for overtime must be approved by HR (me) prior to working extra hours. Our typical work week is Mon-Fri, although for payroll purposes our pay week goes from Saturday-Friday (to accommodate those who work at shows). I just noticed that a customer service employee (hourly) came in to work on Sunday through Thursday as she wanted to take Friday off. Her total hours exceeded 40 (we are paid by the week). Nobody else was here on Sunday to verify she was here. She did not have any project requiring her to work extra hours, nor did she mention working extra hours to me. She entered her hours, entered 40 for total, and nothing in OT. This is not a normal occurrence for her but lately she has been stretching the limits of Flex time (which has been addressed). She can be a difficult person to talk to. Any suggestions as to how I tactfully talk to her about this? Unfortunately I just noticed this (after payroll was submitted -- paying her for 40 hours). Of course, I can pay the OT next week but I need to get the point across to her that this can't continue. I know what she'll say (quite a while ago we had this conversation) -- she'll say she wasn't asking for OT.

pork1

JOYCEL:An ee has to understand "The company can not agree to her position that she is not asking for OT"! To do so and fail to compensate her for all hours worked would put the company in violation of the Federal Law. It will be that type of employee that will have years of minutes, hours, and days marked on a yearly calendar and when she really gets up set with the company, she will dial up the Friendly Wage and Hour folks, who will swoop down upon your lettle company and get into the owners wallet. You can defend all you want to that it was her doings, but your defense will melt and disappear before your very eyes!

The owner needs to help with the clear understanding with this person, that she and all other employees are expected to assist in the record keeping of TIME ALLOWED OR PERMITTED TO SUFFER WORK. SHE HAS NO RIGHT TO VOLUNTEER HER PHYSICAL SELF NOR HER MENTAL BEING ON BEHALF OF THE EMPLOYER'S ABILITY TO DO COMMERCE. The company is liable for the time spent. We use a time clock and round to the nearest quarter hour up and down and that satisfies the need to pay for every single minute. 7/8 minutes of a 15 minute cycle will dictate the payment based on a quarter hour unit of time measurement.

Hope this helps.

PORK

joycel

Thank you all for your feedback. I did speak with this ee again. Remember, we have no time clock and no supervisors. So I reviewed with this ee the hours she entered asking a lot of questions along the way. I also told her that while she did ask me for OT approval, I still had to pay her for it. Only then did she tell me she would likely wind up with the same situation for last week (and this was early Friday afternoon before I was able to talk to her). After discussion about what she causing these extra hours and direction to get assistance on some of this extra work, I checked her schedule for assigned phone time, saw that she had completed that for the day, and told her to leave as soon as she had completed her 40 hours for the week. Her excuse? She was stuffing brochure packets and the time got away from her. And she thought the hours she entered on her on-line timecard didn't carry over to my master sheet -- that I only saw the total for the week. That's about as feeble an excuse as I've ever heard (she's been here nearly 15 years and has always had to list her hours -- did she really think I was that dumb?). Bottom line - she knows I'm watching.

Hunter1

Wow! This is an old post to have dredged up. Joycel: The answer to your question is that there isn't a tactful way to address this person. "She can be a difficult person to talk to.", and, you have already had one discussion with her concerning a similar situation. Now, she has to be told that ANY further unauthorized overtime will result in discipline. Subsequent disobedience will result in progressive discipline or you will end up where Pork says you will.

Don D

But, the employer has no obligation to collect these minutes up cumulatively and pay them out if the employee day in and day out punches in nine minutes early and lollygags around till start time and washes up at the end of the shift, lollygags around and punches out consistently at 10 minutes after. The key, I suppose, is 'work'.

I would imagine that if the DOL Wage Hour folks intended that employers tally up all these incidental minutes, we would see that in legal journals and the media.

E Wart

I know you can't do this all the time, but we were having a problem with employees "standing by the time clock" chatting until they had their 8/40 hours in and would then punch out... some were even just standing there chatting after they could leave to get the extra time. One day, the GM just showed up and stood by the clock watching as people finished their work. Most employees didn't "mess around" but clocked out quickly and efficently. Those who didn't, he asked they why they didn't clock out immediately and then visit afterwards. If they couldn't give him a reason, he asked they if they were performing work they should be paid for. If they said no, he had them write in the actual time they finished and he initaled it and they were paid for only the time they worked. This straightened out the waiting around, at least for a few weeks.
E Wart