October 2013 Bar Bulletin
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October 2013 Bar Bulletin

Time Is Money: On or Off the Clock?

By Jonathan Segal


Fair Labor Standards Act Still Baffling Managers

Virtually every week I hear about another employer allegedly requiring, encouraging or tolerating situations in which nonexempt employees are working off the clock. Even large employers with robust compliance programs are not immune to such legal missteps.

Of course, it is not just larger employers being sued. Employers with relatively few workers, and which literally cannot afford the cost of defense, are being sued, too.

The goal for employers is not to win "off-the-clock" cases, but to avoid them. Consider these suggestions for helping your clients minimize their exposure to such claims and maximizing your chances of winning if such a claim is brought.

Basic Principles

Some strategies for avoiding off-the-clock cases should take employers back to the basics, including training and retraining, enforcing policies that prohibit off-the-clock work, and encouraging managers to report suspected off-the-clock work to HR.

Train and retrain. Provide supervisors with training that makes it clear that they cannot require, encourage or even suggest that nonexempt employees work off the clock. The most important message to convey is that supervisors cannot direct someone to work off the clock, explicitly or implicitly. Also, include guidance on how to address restrictions on overtime.

The untutored have said, "We cannot pay for any overtime." Some employees have heard "work it, but don't record it." Where overtime is not permitted, make it clear, "No one is permitted to work any overtime" as opposed to saying, "We cannot afford any overtime."

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