Protecting companies from hourly employees
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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?
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Yes, there was an HR policy. Yes, the manager knew. We were able to document her start / stop times by tracking her activity in the computer system. From that we were able to come up with a number of hours worked without compensation. It turned out to be a nominal amount (I believe between $1k and $2k).
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@Danp said in Protecting companies from hourly employees:
Yes, there was an HR policy. Yes, the manager knew.
That's the part that mattered. You had a manager breaking the law. Of course you got audited. So that experience doesn't apply here. It's good to know how that works, but we already knew that part. The thing here is that management does not know. If they did, they need to take proper action (written up, firing, docking time elsewhere, whatever.) But when the employee is doing it secretly without permission, it is not the employer's unlimited obligation to pay whatever the employee claims after the fact. If it was, we'd all do that all the time and be billionaires.
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IMO, it is better to be safe than sorry. Pay the employee for the time worked and then discipline the employee for their violation of the HR policy.
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Chances are that employee thought that by working "for free" that they would get favours, not get fired or whatever. Then they got fired... so that manager either set you up for an audit, possibly even colluded, or was hoping to get away with something. A manager can put the company into a dangerous position like that, sadly.
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@Danp said in Protecting companies from hourly employees:
IMO, it is better to be safe than sorry. Pay the employee for the time worked and then discipline the employee for their violation of the HR policy.
Of course, but that went without saying and doesn't change our recommendations. Blocking with technology serves no business purpose, only HR policy matters. And the HR policy would include the notification and discipline information as well.
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@scottalanmiller said in Protecting companies from hourly employees:
The thing here is that management does not know. If they did, they need to take proper action (written up, firing, docking time elsewhere, whatever.)
An employee who works through lunch, beyond their normal work schedule, etc without explicit authorization would need to be paid for their time. Their manager should know that they are working outside of their normal work schedule.
Of course, but that went without saying and doesn't change our recommendations.
The recommendation from you and @JaredBusch was to not pay them, which is the incorrect position IMO ---
@JaredBusch said in Protecting companies from hourly employees:
If they signed company policy and have no proof of being told, then they do not get paid.
Not your fault the company get to benefit from their work. They were told not to.
@scottalanmiller said in Protecting companies from hourly employees:
Right, it's not working at that point, it's volunteering.
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@Danp said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
The thing here is that management does not know. If they did, they need to take proper action (written up, firing, docking time elsewhere, whatever.)
An employee who works through lunch, beyond their normal work schedule, etc without explicit authorization would need to be paid for their time. Their manager should know that they are working outside of their normal work schedule.
Should is debatable here. How or why would they know? We can't really define working, nor can we figure out when accepted work activities are definitely happening. If the employee wants to hide work, they can do so. A manager can't just overcome that. It would be nice if a manager always knew what an employee was doing, but that's not physically possible.
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@Danp said in Protecting companies from hourly employees:
The recommendation from you and @JaredBusch was to not pay them, which is the incorrect position IMO ---
Okay, you pay them, terminate them and sue them for theft.
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I would ask a labor lawyer to verify. but even if they should be paid, they should then be paid, disciplined, and then fired if it continues. No need for IT involvement at all.
This is the problem with @Dashrender's company. Management refuses to do this.
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@Danp said in Protecting companies from hourly employees:
The recommendation from you and @JaredBusch was to not pay them, which is the incorrect position IMO ---
At best you pay them once, and only once. But if HR policy is correct, I don't believe that you have to. If they have accepted that anything outside of hours is not work, it's not work unless something overrides that. Going home and intentionally logging back in to work would be fraud - intentionally stealing time from the business. I don't think that any DoL policy supports paying through extortion in that way. If you allow it to keep happening, of course things change. But if you treat it as trespass and extortion, you don't.
Also, keep in mind, we are talking about first time offenders - if they are not reporting that they are working and no one knows that they are working the legal issues are all on the employee. You have bad faith and attempt to defraud if they report it later.
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@JaredBusch said in Protecting companies from hourly employees:
I would ask a labor lawyer to verify. but even if they should be paid, they should then be paid, disciplined, and then fired if it continues. No need for IT involvement at all.
This is the problem with @Dashrender's company. Management refuses to do this.
Right, no matter what the answer is, the one thing that we know for sure is that this is 100% an HR function and in no way an IT function.
In fact, if I was an employee, @Dashrender's company it turning this into a game. They avoid HR policies and try to make it "hard" to work. Until there is a policy, the employees are free to attempt to work and bill for it all that they want.
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@JaredBusch said in Protecting companies from hourly employees:
I would ask a labor lawyer to verify. but even if they should be paid, they should then be paid, disciplined, and then fired if it continues. No need for IT involvement at all.
This is the problem with @Dashrender's company. Management refuses to do this.
Agreed. Which is inline with this article I just read.
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The game here is much like a car chase I was involved in once. The cops wanted to catch someone speeding, so to get the speed up their never turned on their lights or siren. That doesn't change that speeding is not allowed, but it is not resisting arrest until they attempt to pull you over. Someone took the opportunity to make it a high speed car chase and outrun the cops who foolishly decided to play a game of "get the speed up" instead of just turning on the lights and giving a small ticket.
Same thing here, HR is playing a game of not making it disallowed to work off hours. The lack of policy alone makes the employees more or less allowed to do it. That IT is playing games to make it a cat and mouse thing and HR is refusing policy decisions would, I would think, make it clear to a court that work outside of stated hours was totally allowed. That so much effort was put into not not allowing it makes it obvious that it is indeed allowed. Insane, but allowed.
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@scottalanmiller said in Protecting companies from hourly employees:
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.
What this doesn't say - but of course you'll argue that it was vague in saying - is that manager did or didn't approve their continued work. In this situation, yes the employees should be paid according to the webposting, but then the employees should be written up or fired for non compliance with the HR policy - i.e. they didn't get approval to work.
In this case, the manager assume the employees were volunteering their time as suggested by someone above. -
@Dashrender said in Protecting companies from hourly employees:
In this case, the manager assume the employees were volunteering their time as suggested by someone above.
Which is not allowed according to the link DOL artilce. Management knows. They must be paid.
So pay them, write them up, fire them.
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@Danp said in Protecting companies from hourly employees:
Agreed. Which is inline with this article I just read.
Unless it is a tiny company that only has an owner and no other managers, and that owner is unavailable, how could this even come up as an example case? And companies that small rarely fall under DoL protection anyway. If your manager is out, you just go to their manager instead. There is never reasonably no one around to approve overtime.
