When Your Employee Works OT on the QT, Must You Pay It?

By Eric B. Meyer

That was the question that the Seventh Circuit U.S. Court of Appeals in Chicago faced in an opinion released yesterday.

Here’s the short answer: if you don’t know, then you don’t pay.

The Fair Labor Standards Act (FLSA), among other things, establishes minimum wage and overtime pay standards affecting employees in the private sector and in Federal, State, and local governments. With respect to overtime pay, employer must pay time-and-a-half to covered non-exempt employees who work more than 40 hours in a given week.

But what happens if an employee works OT and you don’t know about it?

Court: an employer MUST know about the OT

In Kellar v. Summit Seating, Inc., the court recognized that to state a claim under the FLSA, an employee must show that her employer knew about the OT:

The FLSA imposes an obligation on the employer to exercise its control and see that work is not performed if it does not want it to be performed. The employer cannot sit back and accept the benefits without compensating for them. The employer’s duty arises even where the employer has not requested the overtime be performed or does not desire the employee to work, or where the employee fails to report his overtime hours. The mere promulgation of a rule against overtime work is not enough. Nor does the fact that the employee performed the work voluntarily necessarily take her claim outside of the FLSA. However, the FLSA stops short of requiring the employer to pay for work it did not know about, and had no reason to know about. (internal citations and quotations omitted).”

Have a written policy about approving all OT

In Kellar, the plaintiff went so far as to clock into work early. However, the court held that punching in before a scheduled shift is not enough, by itself, to put an employer on notice that the employee is working OT. That is, employees who clock in early may not be performing work. And employees don’t get paid for standing around and doing nothing. (Although, waiting time may be compensable).

Here’s a tip to guard against overtime abuse:

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Have a written policy mandating that non-exempt employees must first obtain supervisor approval to work OT. If employees violate that policy, you still may have to pay that OT.

However, you can also counsel and, as necessary, discipline those who violate the policy. And by no means should employers modify time records. Unless, of course, you like lawsuits.

Attorney Eric Meyer will be leading a group of HR pros in a panel discussion on Social Media in the Workplace – Where is it Today, Where is it Going Tomorrow? at the TLNT Transform conference in Austin, TX Feb. 26-28, 2012. Click here for more information on this event. 

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.