Protecting companies from hourly employees
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@Danp said in Protecting companies from hourly employees:
Your HR policy cannot override the DOL rules regarding employee compensation.
Correct, and it doesn't. If an employee is trespassing on your systems when they are not allowed to be working through clearly communicated policy the DoL pretty clearly seems to agree that they do not get paid when attempting to steal from the company.
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@scottalanmiller said in Protecting companies from hourly employees:
And companies that small rarely fall under DoL protection anyway.
I'm not aware of any DOL exemption based on company size. Please cite your source.
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@scottalanmiller said in Protecting companies from hourly employees:
@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.
In this guy's case I'd say the case for fraud it much more in his court. The employee clocked out, yet kept working. If the manager told them to clock out and keep working, well in that case, the company would be liable. I can think of no other reason an hourly employee would stick around after punching out - well other than fear of loosing their job for not putting in unpaid OT, which then of course the company should be spanked!!
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@Dashrender said in Protecting companies from hourly employees:
@Danp said in Protecting companies from hourly employees:
@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.
See, this is where the BS is. Basically, if there isn't some sort of proof that shows that an hourly employee was told to leave, and to get off the clock, then hourly employees can soak a company. Sure in the end, the employee will probably be fired after sever and specific HR policies are put in place, but it's ridiculous that an employee can just choose to work more than their assigned hours.
Both of Scott's provided examples are examples of the employees CHOOSING to work after their assign hours. Management might have 'been aware', but for crying out loud, are we not adults? Do we have to be told.. now children, it's 5 PM. Punch out and go home and do NOT work on anything for my business because I'm not paying to to do that again until tomorrow morning at 8 AM. Really we have to go there? WTF? LOL
Yes, in the US employees are children.
But in all seriousness, it makes sense. If managers know that you are working, we have to assume that they are okay with it. We need the ability for people to work extra, that's just how it is. And you need a system for doing that simply and easily, and we do. I think the DoL examples make perfect sense, if you work and it is approved you get paid.
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In addition to having an HR policy regarding this, Windows makes it easy to enforce your access policy off hours. Every user account has a 'log onto' and 'logon hours' parameter where you can limit user access to specific devices, or to specific hours of the day. In exchange you can deny pop/imap/owa/activesync/mapi, whatever is required by your policy to adhere to it.
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@Dashrender said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
@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.
In this guy's case I'd say the case for fraud it much more in his court. The employee clocked out, yet kept working. If the manager told them to clock out and keep working, well in that case, the company would be liable. I can think of no other reason an hourly employee would stick around after punching out - well other than fear of loosing their job for not putting in unpaid OT, which then of course the company should be spanked!!
Right, and you had a manager that was aware of it. That's why they warn against reward managers in such a way that makes them want people working off of the clock - good way to have the lawsuit go further up the chain.
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@momurda said in Protecting companies from hourly employees:
In addition to having an HR policy regarding this, Windows makes it easy to enforce your access policy off hours. Every user account has a 'log onto' and 'logon hours' parameter where you can limit user access to specific devices, or to specific hours of the day. In exchange you can deny pop/imap/owa/activesync/mapi, whatever is required by your policy to adhere to it.
Yup, we provided the link on how to do that in Office 365, as well. The problems come in when there are flexible hours or other kinds of needs. It's great for factory workers, but not too many other roles.
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@Danp said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
And companies that small rarely fall under DoL protection anyway.
I'm not aware of any DOL exemption based on company size. Please cite your source.
I'll have to dig into it, but I know that companies of nine or fewer employees get all kinds of exceptions, like not needing to provide healthcare, certain benefits and can openly discriminate as to who they hire. It's one of the reasons that we rejoiced when Walmart came to down back home - much more fair hiring and employment practices.
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@Dashrender said in Protecting companies from hourly employees:
I can think of no other reason an hourly employee would stick around after punching out - well other than fear of loosing their job for not putting in unpaid OT, which then of course the company should be spanked!!
Higher commissions
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@scottalanmiller said in Protecting companies from hourly employees:
@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.
Then there is an easy answer.
Pay for the "overtime" then promptly shit can them.
At-Will employment, and OT milking is not a protected act.
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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.
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 ---
If the employee punches a clock or has a time sheet and they claim to be off the clock, yet continue to work, no, I don't agree that the employer would/should know this - many places don't stand over the shoulder of all of their employees like that. That's just my opinion. Now, if the boss KNOWS they are doing this, then according to these posting - it's the boss' job to council the employee about their behavior and get it corrected, OR pay them OT, and make sure they aren't lieing on their timecards.
@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.
See here's the rub though - The manager knowing they are working - yeah, well I guess if they know, then they do have to treat their employees like children and tell them to leave or get in HR trouble. That's really pathetic, but fine, I'll accept that.
@scottalanmiller said in Protecting companies from hourly employees:
Right, it's not working at that point, it's volunteering.
I guess I'll agree, if the boss doesn't know, then the employee is out, if the boss does know, sadly I guess again the children thing. sigh.
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@Dashrender said in Protecting companies from hourly employees:
@Danp said in Protecting companies from hourly employees:
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).
See, exactly what I was talking about - using the computer system to show work. if someone is in our EHR, they are clearly doing work - it would be near useless for making party plans. Sure I mentioned email earlier, but we definitely shouldn't be limited to that alone.
Are they? If someone was in our EHR during disallowed hours when they are clearly not allowed to be working sounds like a HIPAA violation to me. I'd be looking into it more from that point of view. But regardless, how do you define "being in" that system? Am I "in" ML right now? And I "in" my desktop? Am I "in" any of the servers that I have sessions logged into right now? Am I "in" my email on my phone even though my phone is in another room and just connected through an ActiveSync session?
Just because someone has a connection to the EHR doesn't imply that they are using it. Like I said, no amount of logging from IT tells you if someone is or is not working. Maybe if you were watching their screens.
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@scottalanmiller said in Protecting companies from hourly employees:
I think the DoL examples make perfect sense, if you work
and it is approvedyou get paid.FTFY.
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@Danp said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
I can think of no other reason an hourly employee would stick around after punching out - well other than fear of loosing their job for not putting in unpaid OT, which then of course the company should be spanked!!
Higher commissions
Although if they are getting commissions for the work, generally you have other solutions. If they get commission for that time, they might qualify as being compensated already. It depends, of course, but that's why commissioned work exists in the first place, or partially at least.
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@Danp said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
I think the DoL examples make perfect sense, if you work
and it is approvedyou get paid.FTFY.
So in your example, even if someone does not employ you, but you do work, you should get paid? What if, while at McDonald's, you sweep the floor and clean some tables? Can you demand that they pay you? They did not agree to employ you, yet you did work.
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@Dashrender said in Protecting companies from hourly employees:
See here's the rub though - The manager knowing they are working - yeah, well I guess if they know, then they do have to treat their employees like children and tell them to leave or get in HR trouble. That's really pathetic, but fine, I'll accept that.
Right, if the manager knows, they've approved the time. If I'm working with my manager somewhere and I just keep working past hours, I have to assume that the manager is aware. If the manager wants me to go home, they need to tell me. Know what I mean? Put yourself in the role of a fast food worker and ask how you would expect someone to behave? Having been a fast food worker and a fast food manager, I think that this is completely reasonable. Most jobs you get overtime just by being needed and no one sending you home. Because the work needs to be fluid.
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@scottalanmiller said in Protecting companies from hourly employees:
@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.
This totally disagrees with your first quoted situation above - Which specifically stated that the HR policy said no OT unless approved. The boss knowing you're doing it is not, to me, defacto approval - but according to the situation above is it.
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.
Here's the key. Sadly, what's being said here is that if a manager realizes that an employee has done this, it's their job to take action to stop it from happening again. The HR policy is not enough to stop it on its own, other than the HR policy might allow the employer to fire that employee right then and their when the boss realized this happened.
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@Dashrender said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
@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.
This totally disagrees with your first quoted situation above - Which specifically stated that the HR policy said no OT unless approved. The boss knowing you're doing it is not, to me, defacto approval - but according to the situation above is it.
How does it disagree? The company knowing is obviously implicit approval. So I see this as totally in agreement.
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@Dashrender said in Protecting companies from hourly employees:
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.
Here's the key. Sadly, what's being said here is that if a manager realizes that an employee has done this, it's their job to take action to stop it from happening again. The HR policy is not enough to stop it on its own, other than the HR policy might allow the employer to fire that employee right then and their when the boss realized this happened.
No HR policy is ever enough to do something on its own. HR policy gives the manager the tools to do their job. A manager still must always act as the manager, of course. Otherwise we'd let HR policies alone run companies and not pay anyone.
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@scottalanmiller said in Protecting companies from hourly employees:
So in your example, even if someone does not employ you, but you do work, you should get paid? What if, while at McDonald's, you sweep the floor and clean some tables? Can you demand that they pay you? They did not agree to employ you, yet you did work.
No, I never said that. That would be a valid example of volunteering. Your example wasn't.
