Gibson Law Group - April 2018

A QUEST ION OF OVERT IME Knowing When to Pay Your Employees Outside of Normal Hours

If an hourly employee continues to work after hours and outside of the workplace, do I still have to pay them?

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In most cases, yes. The Fair Labor Standards Act (FLSA) requires employees be paid the minimum wage for all hours worked during each workweek. Employees not exempt from overtime requirements must be paid overtime (time and a half) for all

hours worked in excess of 40 hours during each workweek.

A large percentage of lawsuits currently served against employers under the FLSA stem from the fact that despite the employer’s set hours and specified workplace, employees continue to work after hours from their smartphones, tablets, and laptops, or they bring home physical documents to review.

This usually does not occur because an employee is attempting to do anything inappropriate. Rather, they may want to impress a boss and achieve certain project goals, better serve clients located in different time zones, or increase their pay (if productivity is linked to their pay). Even though the employer may not pay overtime as a rule, the employer is still required to pay overtime to a nonexempt employee who works over 40 hours in a workweek by choice. The FLSA does not allow employees to choose to work more than 40 hours in a week and not receive overtime pay for it. Instead, the question under the law is this: Did an employer “suffer or permit” an employee to work more than 40 hours in any given workweek? In other words, did the employer have any reason to know that an employee was working outside of normal working hours, off premises, and possibly over 40 hours per week, and did the employer take effective steps to stop that extra work or pay the required overtime? If the employer knew — or should have known — the employee was working after hours or on weekends and accumulating over 40 hours a week, the employer is then usually considered liable for unpaid overtime wages. The employer can also be held liable for liquidated damages and attorney’s fees for any employees involved plus attorney’s fees incurred for the employer who now must seek representation.

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