FLSA: Employees are not volunteers
Knowing who are employees for whom the federal Fair Labor Standard Act (FLSA) applies isn't always easy. Non-exempt employees must be paid for all hours worked. Employees generally may not volunteer to work without pay. The information below can help avoid violations of the FLSA regarding paying hourly (non-exempt) employees for all hours worked.
Tracking all work time
Supervisors can help keep the company avoid expensive litigation regarding employee pay. Employers must report all hours employees work and pay them for those hours.
DO NOT
- Require employees to work without pay.
- Allow employees to volunteer to work without pay, even if they want to in order to meet a deadline or stay within a budget.
- Claim that an employee agreed to violate the law, as this is generally a poor defense to a back pay claim.
- Adopt a policy statement such as: “If you arrive early, do not punch in until your usual starting time.”
While your intention may be pure, the statement could create the impression that employees who arrive early may begin working before punching in, so that time is not recorded. Holding a meeting with employees to explain the intent might avoid initial confusion, but such a policy could remain in place for years. If employees with heavy workloads begin to misunderstand the intent, the statement could be viewed as an encouragement for off-the-clock work.
Even employees who agree to voluntarily work without pay may later file lawsuits for back pay. The regulation at §785.11 is clear that if an employer “knows or has reason to believe” that an employee is working, then the time must be paid.
However, employees have been less successful in claiming back pay if they cannot show that the employer had some reason to believe that the employee was working.
DO
- Record and pay employees for all hours worked.
- Be aware that any agreement to ignore those hours will not impair the employee's ability to file a lawsuit for back pay.
- Be careful to avoid “encouraging” employees to work without recording their time. Such encouragement may be unintentional, but could nevertheless contribute to liability. Many supervisors, for example, have legitimate concerns about overtime, particularly if employees arrive early and their time punch is rounded back to the nearest 15-minute interval (e.g., a time punch at 7:50 is rounded back to 7:45). This could add 15 minutes of overtime every day.
- Establish a clear policy for reporting all hours worked, including work done at home, and warn employees not to work off the clock.
- Remind all employees of the policy.