No Extra Pay for Off-Clock-Employee Overtime

Cary, NCJohn is an independent contractor whose work agreement stipulates precise hours on the job yet he is asked to work overtime on a regular basis, with no extra compensation.

"I work for this staffing company," says John, "and through them I am assigned to work in supermarkets. The work rotates on a monthly cycle—through 16 different stores of the Food Lion chain, four days a week, four weeks a month.

"My job is to stock shelves, working on a team with about six others, one of who is called a team leader. This team lead is also employed by an outsourcing company, like I am, but to my knowledge they are salaried. They are the ones who give us direction as to what to do in the store and tell us how long we should work.

I start at 7 a.m. every day and am supposed to finish by 4 p.m. This is what my outsourcing company stipulates—I'm to be paid until 4 pm. But sometimes they want me to stay late. I have to walk out sometimes and this causes problems on the job. When I stand up for myself, they weaken, if I don't, they take advantage.

Here's an example of how it goes: let's say we've taken down all the dog food, following the planogram which indicates where to put it on the shelf—there's some new stuff, some discontinued, and it's all shifted around once, maybe twice a year. Theoretically these 'resets' don't ever get finished until 4:30 or 5, never at 4. People like me who leave at 4 are called rebels and argumentative.

All of us are always under stress because of that 4 o'clock. Sometimes I stay, depending if I'm weak on a given day. But I don't want the extra money because the job is hard enough so I want to leave when it's 4 o'clock.

We're in an at-will state here in North Carolina, meaning they can fire you without a reason and there aren't any unions. The outsourcing company is, on the surface, who hires me, but in reality, down the line I'm hired by the supermarket and since the supermarket is their major customer, and since I'm just a little speck, I'm expendable and don't have much power as an individual."

John feels even more vulnerable because his contract is a verbal agreement, not written. Even when his staffing company encourages him to leave at the prescribed time, he cannot count on their complete support as they have revealed a habit of changing their tune.

"They all work hand in glove," John says. "We, the employees, are not part of the team; we are the expendable part of the clique so my employers will say anything as long as they get their free hours.

On the web there are lots of other cases where people are told to 'work off the clock', that's the term they use, like at Wal-Mart, and it's a major problem around the country.

People get into a bind. Individually, they have no power but collectively, it takes a lot of people to file a lawsuit. I spoke to the Department of Labour recently but they're not involved at all because 'working off the clock' doesn't violate any labor laws. They are concerned with the Fair Practice Standards Act, which deals with hours, wages, etc.

What it's about is that we are the one area in the store where they can make money: if they have 100,000 part timers and can pick up an hour on each one, that's $100,000 free each week. It's no secret, there's no law against it.

I've been working for this present employer, Scott and Franklin, for 15 months, and in the same position for another company before that. I took this position because it is closer to my home. I'm not considering quitting; I'm 67 years old and need a job. I am unfortunately one of the poor and older 'employees'.

I'm trying to find out what my options are, if any at all. I guess what I'm looking for—because I don't have a snowball's chance in hell of fighting this organization as an individual—is to find other people in the same situation who want to go up against this together—a class action."

If you are experiencing over-abuse of overtime requests and feel powerless to bring about change, legal advice will clarify your options.