NEW DEVELOPMENTS IN FLSA AND FMLA LAW - “Off the Clock” Work
October 8, 2007
Guy Farmer - Jacksonville
Many employers are aware of the deluge of cases being filed under the federal Fair Labor Standards Act (FLSA) alleging violations of the FLSA’s minimum wage and/or overtime pay provisions. Perhaps less well known are those claims filed by employees and former employees alleging that the employer forced them to work “off the clock.”
Typical “off the clock” claims allege that an employer engaged in a systematic scheme of requiring hourly employees to work through rest and meal breaks, resulting in the employees not being paid for all hours actually worked. These claims are almost always filed as class actions because each separate claim is for a small amount and only through a class action are the claims economically viable. For example, a series of “off the clock” cases have been filed against Wal-Mart. Often, the cases are filed in state court and allege a violation of an express or implied contract to provide meal or rest breaks. In some cases, the courts have certified the class, while in others the courts have refused to do so.
In addition to alleging that employers force employees to work during their unpaid breaks, employees have also alleged that their employers forced them to clock out and then continue to work or to start work before clocking in at the beginning of the day. Employees have also claimed that their supervisors changed time records to delete hours they actually worked. In one case, employees claimed that their manager ordered them to clock out at the end of the normal work day and then locked them in the store to take inventory until their assignment was completed.
“Off the clock” claims pose a significant threat to employers, particularly if brought as a class action, because the cost of defending against the claims and the potential liability can be enormous. Although employers cannot be certain that such claims will not be made, they can take steps that will minimize that likelihood and make the case, if filed, easier to defend. These steps include:
1) having a tamper-proof timekeeping system
2) giving employees the right to review their time records and a mechanism to bring any errors to management’s attention
3) implementing and enforcing a published policy that does the following:
- prohibits employees from working “off the clock”
- prohibits supervisors and managers from directing or allowing employees to work “off the clock”
Supervisors should be advised that these rules are serious and violators will be disciplined, up to and including termination.
4) avoiding putting pressure on managers to get their non-exempt employees to do more work than can be completed during a regular work day, while also prohibiting managers to authorize overtime payments; pay policies which reward supervisors who avoid paying overtime can also create problems
5) maintaining a publicized complaint process that allows employees to bring pay issues to upper management, and protects employees who do so
6) monitoring pay practices throughout the organization
There is no insurance policy that can halt the filing of “off the clock” claims. Implementing these recommendations, however, will minimize the risk of claims that an employer has a systemic plan of not paying its employees for time worked.
For more information, email Guy O. Farmer at
guy.farmer@hklaw.com or call toll free, 1-888-688-8500.