Increasingly, employees are faced with a choice in the workplace: either work "off the clock", quit or get fired. They are often promised advancement by showing up early and staying late. Or being on call like Dan McGuinness, and threatened with termination if the job isn't done.
"I worked off the clock for six years," says McGuinness. "I had a salaried position as a broadcast engineer but everything broke down constantly and I was on call 24/7, 365 a year. I was working approximately 15 hours overtime each week and I would be threatened by the VP that if I didn't get the job done I would be terminated.So I went along with this. My supervisor was fired earlier this year (he was also working off the clock and complained) and I was promoted to his position but it got worse - I was working up to 90 hours per week. I was promised a salary increase: it was only an extra $5,000 per year. After waiting three months for my raise, I finally confronted management. They fired me.
Now I have two options - half of me wants to let it go but the other half wants to fight them so they don't continue this practice with anyone else." Fortunately, McGuinness isn't alone in his fight.
Some people will argue that well-known companies such as Wal-Mart and Radio Shack don't ask their employees to work "off the clock", particularly in upper management. But the federal government has recently taken action against such businesses and class action lawsuits are more frequent, particularly now that employees are willing to talk and they are becoming aware of lawsuits that compensate them back pay.
For example, In October 2005, about 500 local farm workers sued a grape farm for several years of unpaid work hours. Manuel Hernandez filed the lawsuit in April 2004, accusing the grape grower of failing to pay its workers for daily preparatory work between 2000 and 2003. The workers arrived at 6 a.m., a half-hour before the scheduled start of their shift, to unload wheelbarrows and supplies and put them in vineyard rows. But they only got paid for starting work at 6:30 a.m. Hernandez found some attorneys to handle the suit and a Fresno federal judge awarded $1.7 million to the farm workers.
Management usually ask employees to engage in the practice of working "off the clock" to keep costs down. But now, workers at hair salons, corner grocery stores, restaurants, car dealerships, call centers, and big box stores such as Home Depot and other businesses who historically just complained only to one another about off-the-clock work are now speaking up and documenting the illegal practice.
Thanks to aggressive "Off The Clock" attorneys filing more lawsuits, some of which resulted in multimillion-dollar settlements against companies such as Radio Shack and Starbucks, the Labor Department recently brought enforcement actions against several companies that required off-the-clock work, seeking back pay and demanding compliance. Alfred Robinson, director of the wage and hour division of the Labor Department, confirms that it is "one of the more common violations of the Fair Labor Standards Act."
For example, the Pleasantview Healthcare Center of Bolivar, TN., paid $44,887 in back wages after the Labor Department found off-the-clock violations involving 41 employees - many of them clocked out while finishing their daily tasks. And $180,000 was recovered from the Hanna Steel Corporation after finding that 522 employees had been forced for months to begin work five minutes before their regular shifts started.
In 2003, the Labor Department announced a $4.8 million back-wages settlement with T-Mobile, the wireless telephone company, after finding that it had forced 20,500 call-center employees to work off the clock by making them show up 10 to 15 minutes before their scheduled clock-in time.
Know Your Rights
Sometimes the employer and employee may not fully understand the federal and state rules and regulations that govern overtime.
Basically, the law is simple: employers are required to pay overtime to employees who work more than 40 hours in a given work week at a rate of one and one-half times the employee's regular rate of pay. Although the rule is easily stated, it is not so easily applied.
Here are a few most commonly asked questions regarding "off the clock" and overtime issues;
Are salaried employees entitled to overtime?
Most salaried employees are entitled to overtime pay. But this law is easily misunderstood by employers and employees. Some employees are paid a monthly salary instead of an hourly wage but this doesn't solve the problem - although the employer might think so. The overtime laws contain many exemptions regarding specific categories of employees that are not subject to the overtime requirement, but being paid a salary is not one of them.
Does the employer have to pay overtime compensation even if the overtime work is not authorized?
Yes. Many employers have official policies in place which require that overtime must be authorized in advance. These policies are better than nothing, but still do not protect the employer from the obligation to pay overtime compensation.
If an employer knows that an employee has worked more than 40 hours in a work week even without prior approval, the employer is usually required to pay overtime compensation for the work. This means that, to avoid paying overtime to employees who did not get permission to work extra hours, the employer needs both a rule prohibiting unauthorized overtime and a consistent practice of enforcing the rule.
Can an employer avoid paying overtime by offering compensatory (comp) time instead of overtime pay?
Yes, but there are limitations. Public employers can and do use comp time as a way of avoiding overtime compensation for extra hours worked. But this practice is more complicated for private employers. Generally, private employers are not allowed by state law to require comp time in lieu of overtime pay, but comp time can be requested by the employee.
What are the penalties for not complying with the overtime rules?
Noncompliance penalties can be severe and the employer can be sued in federal or state court by employees who believe they are owed overtime compensation. If the court rules in favor of the employee, the employer can be ordered to pay double the amount of overtime wages claimed, the employee's attorney's fees and costs in bringing the lawsuit, and interest on the amount of wages owed.
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