Protecting companies from hourly employees
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@scottalanmiller said in Protecting companies from hourly employees:
@Danp said in Protecting companies from hourly employees:
Sorry, but that's not the way it works. You have to pay the employee for the hours worked. Then you counsel / discipline per the HR policy.
Not paying the employee can lead to much larger issues with the DoL.
That's not correct. If you tell someone to go home and they refuse they are trespassing, not working. Not the same thing. But you have to have a policy that makes it clear that they can't do overtime without something in writing.
I think you've drifted into to things that may or may not overlap.
Telling someone to go home and get off the clock, yet they remain is tresspassing, written or not. If someone has a set work schedule that does allow for OT, I'm not sure where the employees ability to choose to continue working past the prescribed time window vs the assumed necessity of them to leave kicks in.
i.e. Jane's listed schedule is 8-5 with 1 hour for lunch unpaid Overtime as needed. Who gets to decide if and when she gets overtime? If the above is all that's listed, who gets to make that call? her? or her boss, or both?
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Keep in mind that an employee can claim to be working just for "thinking about" work or talking to someone about work. Or they can work on paper. Or make calls using a personal device. You can spend time arguing about if you need to pay people working when they are not allowed to work, and that will be up to a judge to decide. But access to company resources is not the determining factor, if they want to go over hours they can do it if you grant access or not.
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Just going to put it out there: this is a really strange question to ask. On so many levels.
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@scottalanmiller Have you ever been audited by the Department of Labor? Based on your inaccurate comments, I think not....
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@Dashrender said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
Have you considered a time based policy? Make email or whatever only accessible to people during set hours? IP based blocking, even within the context of this bad idea, is a bad idea.
Yes, we've considered it. How does that work for OWA? Does the AD's login time apply to Exchange as well as Windows PCs logons?
For OWA:
https://gallery.technet.microsoft.com/office/Client-Access-Policy-30be8ae2
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@scottalanmiller said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
Outside of actually fixing the problem, you can blacklist via your firewall, of course. This makes no business sense and just raises costs and encourages people to be inefficient. But you can do it. Not a big deal. There is no simple answer to it, though. You have to get the IP addresses from all of the employees and have them voluntarily provide them all the time, and since they change constantly you'll have no effective way to block cell phones, hotel rooms, McDonald's wifi, etc. You can block ranges, but you might block too much.
Exactly my point.
But even having a policy means policing the logs looking for people logging when they shouldn't be. So that's an additional time drain/money waste. If you prevent it because it's simply not accessible, then you don't spend any of that effort/capital. But I know we're beyond that today.
Why does it? Step back and ask yourself... why does IT need to police this if they are capped at their hours that can be worked? And even if they are logged in, it doesn't even imply that they are working. So what would you do with that data?
simple answer - because boss.
long answer, management believes they could be held liable for people who are checking their email hourly, let's say, at night. those employees could claim that their checking is work and they should be paid for it. So preventing them, prevents the argument. Of course and HR policy stating that they are not allowed to check their email after, say, 6 PM and before 7 AM, should prevent that in a court case, but we've all seen/heard of ridiculous court cases before.I'm not saying it's logical... but I do have to do what the bosses want, regardless of my personal opinions.
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@Danp said in Protecting companies from hourly employees:
@scottalanmiller Have you ever been audited by the Department of Labor? Based on your inaccurate comments, I think not....
Have you had the DoL tell you that employees claiming to do work was all that it took for them to get billable hours? Even if they had a policy stating that doing so was trespassing and not allowed and that reporting such would be immediate termination? Did you then allow them to do so anyway? I want to know how this happened that people were reporting hours, were not terminated and the DoL audited and found them working?
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@scottalanmiller said in Protecting companies from hourly employees:
Keep in mind that an employee can claim to be working just for "thinking about" work or talking to someone about work. Or they can work on paper. Or make calls using a personal device. You can spend time arguing about if you need to pay people working when they are not allowed to work, and that will be up to a judge to decide. But access to company resources is not the determining factor, if they want to go over hours they can do it if you grant access or not.
Sure they can, but when using trackable company resources makes their case for them a bit more, at least that's the belief.
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@Dashrender said in Protecting companies from hourly employees:
simple answer - because boss.
That's never the real answer. It's always because owner. The boss does as little as their boss' want them to do.
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@Dashrender said in Protecting companies from hourly employees:
long answer, management believes they could be held liable for people who are checking their email hourly, let's say, at night. those employees could claim that their checking is work and they should be paid for it. So preventing them, prevents the argument. Of course and HR policy stating that they are not allowed to check their email after, say, 6 PM and before 7 AM, should prevent that in a court case, but we've all seen/heard of ridiculous court cases before.
My point is, it does NOT prevent the argument. The employees can still claim that attempting to check emails, even if it doesn't work, is billable work as well.
What is the fear, that an employee will call the DoL and claim to have been falsifying their own work records? I'm confused as to how the DoL would get involved if it is the employee doing something wrong and not the company.
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@MattSpeller said in Protecting companies from hourly employees:
Just going to put it out there: this is a really strange question to ask. On so many levels.
Weird things that happen with American business.
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@Dashrender said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
Keep in mind that an employee can claim to be working just for "thinking about" work or talking to someone about work. Or they can work on paper. Or make calls using a personal device. You can spend time arguing about if you need to pay people working when they are not allowed to work, and that will be up to a judge to decide. But access to company resources is not the determining factor, if they want to go over hours they can do it if you grant access or not.
Sure they can, but when using trackable company resources makes their case for them a bit more, at least that's the belief.
It doesn't, though. It presents totally random, useless data. It doesn't show that they are working nor does it show that they are not working.
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@Dashrender said in Protecting companies from hourly employees:
i.e. Jane's listed schedule is 8-5 with 1 hour for lunch unpaid Overtime as needed. Who gets to decide if and when she gets overtime? If the above is all that's listed, who gets to make that call? her? or her boss, or both?
That's obviously handled by HR policy. Normal companies do not have these issues. HR basics solve them 99% of the time. Do you really have an issue where there is no HR policy that tells people who their boss is? Or moreso, who is an approver for them to work?
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https://www.dol.gov/whd/regs/compliance/whdfs53.htm
See section near the bottom regarding unauthorized work.
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@Danp said in Protecting companies from hourly employees:
https://www.dol.gov/whd/regs/compliance/whdfs53.htm
See section near the bottom regarding unauthorized work.
Exactly my point, here is the wording straight from the site: Employees must be paid for work “suffered or permitted” by the employer even if the employer does not specifically authorize the work.
Suffered or permitted, @JaredBusch and I have been very clear that that is the issue that @Dashrender has. They are currently permitted, and any IT attempts to change that are irrelevant. Only an HR policy forbidding it will make something clearly not "suffered or permitted." After you have that policy, you only need to do something more when you know that someone is breaking the policy, no obligation to make it impossible - since you can't (stopping them from thinking, working on paper, discussing, etc.)
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They provide examples for this case as well: A residential care facility pays its nurses an hourly rate. Sometimes the residential care facility is short staffed and the nurses stay beyond their scheduled shift to work on patients’ charts. This results in the nurses working overtime. The director of nursing knows additional time is being worked, but believes no overtime is due because the nurses did not obtain prior authorization to work the additional hours as required by company policy. Is this correct? No. The nurses must be paid time-and-one-half for all FLSA overtime hours worked.
Notice that the nurse was needed, stayed on site and their manager was aware that they were working.. So this example suggests that what @Dashrender is doing is not appropriate.
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Second example: An hourly paid office clerk is working on a skilled nursing home’s quarterly budget reports. Rather than stay late in the office, she takes work home and finishes the work in the evening. She does not record the hours she works at home. The office manager knows the clerk is working at home, but since she does not ask for pay, assumes she is doing it “on her own.” Should the clerk’s time working at home be counted? Yes. The clerk was “suffered and permitted” to work, so her time must be considered hours worked even thought she worked at home and the time was unscheduled.
This one is closer, but still quite different. Someone works from home, it is known that they are working from home. All parties are aware that someone is working from home, same as they would from the office. Again, not applicable here, but at least closer.
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@scottalanmiller said in Protecting companies from hourly employees:
Have you had the DoL tell you that employees claiming to do work was all that it took for them to get billable hours? Even if they had a policy stating that doing so was trespassing and not allowed and that reporting such would be immediate termination? Did you then allow them to do so anyway? I want to know how this happened that people were reporting hours, were not terminated and the DoL audited and found them working?
I've been through two audits, both as a result of employee reporting. The first was an exempt supervisor who didn't like how I handled PTO in conjunction with her hours worked. No finding of fault in this instance.
The other was a situation where the employee was working off the clock, and she filed a complaint after she was terminated. We had to pay her for the amount of time that she hadn't been compensated.
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So from the wording, general logic and the examples given, the DoL would have no grounds for being upset if they audited and found that access was enabled and that the company was not blocking access to some types of company resources.
There is also the questions of things like "is checking mail working?" First, you don't need to know if they are checking it at all. Second, no visible work is being done. Third, they could be using it for non-work activities like scheduling parties, car pooling or the Fantasy Football results.
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@Danp said in Protecting companies from hourly employees:
The other was a situation where the employee was working off the clock, and she filed a complaint after she was terminated. We had to pay her for the amount of time that she hadn't been compensated.
And...
- Was there a counter suite for fraud? Because if this was what we are describing here, there would be if this happened.
- Did anyone know that she was working?
- How did she document work hours while no one knew she was working?
- Was there a clear HR policy stating that she could not do so?
- Did any manager know or approve this?
