working without pay

[font size="1" color="#FF0000"]LAST EDITED ON 09-22-03 AT 03:36PM (CST)[/font][p]Okay I think I know the answer to this question but I wanted to run it by you guys.

We are (like a lot of companies) understaffed. We have a ton of new projects and things going on. One of the managers asked me if our one hourly ee could "work at home" for free. I said, we have to pay him for whatever he works. If it is overtime we have to pay it. He said what if the guy actually does the work but we pay his wife. Again, I said no, we have to pay the person who actually works. (He is from Europe and not familiar with our laws/practices.)
Anyway he also wondered if his wife could do the work and we not pay her, just for her to get some experience. I say no, we are not a Non-Profit organization and don't have "volunteers." We have to pay people for what they work. In her case we couldn't even do it because she is not legally allowed to work in the US.

My question is, if someone outside the company offers to work "for free" to help us out, is that allowed? My thinking is no, like I said we don't have "volunteers" we have to pay people for what they work.


  • 5 Comments sorted by Votes Date Added
  • You've answered your own question. What you refer to is unauthorized work, which in every case is compensable (29 cfr 785.11) For a private, for profit business, there is no such animal as a volunteer. "Off the clock' work, in and of itself, is not prohibitied by the FLSA, the problem comes when the e/ees average wage for a pay period falls below the nimimun wage, or when the off the clock work results in hours worked inexcess of 40 w/o being paiod time and half.
  • JERZAL: The term is "CONTRACT LABOR" all you need is a SSN and a NAME to whom you would later issue a 1099; the individual can work for any number of hours or a given amount of money, as long as the equation will give you at least minmum wage. "CONTRACT LABOR" should never be used instead of enrollment/payroll unless the job/task are for a given short period of time. Otherwise, use "part-time temporary hire" workers.

    You are right, you should have paid all family members for their service, they could have then donated the money to some charity but only after you have some proof of payment for their time. Today, if you know who worked what hours I would recommend the payment to those you know are still affliated with your company.

  • Thanks for confirming my thoughts.
  • In most states, a non-exempt ee must be paid overtime for any hours worked in a week over 40 hours, period. I'll give you a couple of examples of the problems you could run into, if his employment with you ever reaches a "nasty" stage.

    First, if this person is from another country, and other ethnic group, you will instantaneously have a discrimination suit on your hands. It would be fully justificed: Your boss has chosen this employee to work off the clock ONLY because he is unfamiliar with the laws and doesn't understand how illegal the request is.

    Second, in many states, if you fail to pay overtime, they will consider it "failure to pay wages on time". You will have to pay them interest, or in some states, they can collect for treble damages, not to mention the fines for EACH paycheck that they were not paid accordingly.

    You are setting yourself up for a lawsuit. In my company, employees are told at orientation that if I ask them to work off the clock, to report me immediately to Human Resources. That is a first-occurrance terminable offense and I would lose my job.

    It's not worth it.

    I'm not sure how difficult the work is, but have you considered temp agencies? We use them exclusively for our menial tasks because we don't have to pay them benefits.
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