It seems like such an insignificant little case, but it's
really a can of exploding
An Illinois woman who was terminated
after she was caught working during her lunch period has won her claim for
unemployment. (The employer said that she was not terminated for working but
for her behavior after she was confronted about the unauthorized work.)
Your gut reaction was probably the same as mine -- they
terminated this lady for working? What, are you kidding me? What
is wrong with this employer?
But after I came to my senses, I had a few more thoughts:
*The Land of Lincoln requires that
employees who work 7 1/2 hours or more get a 20-minute unpaid meal break after
their first five hours of work or earlier. So, presumably, this employer faced
potential liability if it looked the other way when employees skipped their
meal breaks to work.
*The Fair Labor Standards Act requires that
non-exempt employees be compensated whenever they are required or
"suffered" to work. "Suffered," for those of you who don't
read the King James Version of the Holy Bible, or Stephen King,
means "allowed." Therefore, if an employee chronically skips unpaid
breaks of 20 minutes or more, the employer could be liable for back pay and
*According to the employer in this case, the employee had
been warned several times in the past about working during her breaks.
In other words, this case raises a nice thorny set of
issues about "off-clock work."
The problem. It
helps to recall that the FLSA was enacted in the 1930's, when the work force
consisted of men (as in, "males") going to heavy, dirty factories,
doing heavy, dirty labor, punching out at the end of the day, and going home to
simple-but-delicious dinners cooked by their loving wives, and surrounded by
their obedient children, and listening to FDR's Fireside Chat on the Wurlitzer.
(Yeah, I'm sure it was exactly like that, but you get my point.) Or, for a 1960's
version, think Fred Flintstone
and "the fights" on TV.
As a result, the FLSA still works pretty well in what
manufacturing we have left in this country but less so in the Buck Rogers world of the
salaried non-exempt employee, who is equally likely to be female and who may
place more value on a flexible schedule and be more inclined to "work
straight through" so she can leave early and get little Addison and Liam
picked up before the day care center closes. (PS - Sometimes guys like
flexibility, too.) Not to mention that we now have these devices called
"cell phones" and "home computers," which greatly heighten
the risk that some "off-clock work" will be performed on any given
day. And not to mention that the supervisors of these employees are
FLSA-exempt and can work whenever they feel like it with no problem . . . which
makes them more inclined to think nothing of their direct reports' doing
My own opinion is that salaried, non-exempt employees should
be able to make their own schedules and be flexible if the job allows it. But
nobody consulted me when they enacted the FLSA. (I'm sure they wanted to, but
my parents were only preschoolers at the time and hadn't met yet.) So,
according to the "Stone Age" law, employers are faced with two
unattractive alternatives: (1) keep employees happy by letting them do their
thing as long as the work gets done, but risk liability for off-clock work; or
(2) obey the law by requiring employees to stick to their required shifts and take
all required breaks on schedule, no ifs, ands, or buts, which will make the
employees very unhappy, not to mention insulted because they identify with the
Buck Rogers world, not the Flintstone world.
I suspect that our Illinois employer chose option 2 because
it understandably wanted to stay out of legal trouble. And it's very difficult
for an employer to win an unemployment case anyway, especially
in Illinois. (Scroll down to "Disqualifications" and
"Definitions.") This employer will still probably be in great shape
to defend a wage and hour lawsuit.
The solution? I'm
not only a lawyer, but I'm also an employer, so "I've looked at life
from both sides now." Here are my suggestions for minimizing your
exposure for off-clock work while keeping your non-exempt employees relatively
satisfied with their jobs:
*Set a "regular" work schedule that
fits the needs of your non-exempt employee. Even though you may
need to make adjustments as her needs require, get as close as you can with her
"regular" schedule. For example, if she has to leave at 3 p.m. to get
the kids from school, make the "regular shift" 7:30 a.m. to 3 p.m. if
you can. This will not resolve all of your "off-clock" problems but
will at least make it likelier that she will be able to put in a full day's
work without wreaking havoc in her personal life.
*Tell your non-exempt employee that you do
not expect him to work outside his normal hours even if you leave voice mail
messages or send emails to him outside his normal hours. If
you're like me, you think of all kinds of crazy things at 3 a.m. and want to
send an email or leave a message right away because you know you'll have
forgotten it by the time all the normal people are at work. Make sure your
employees know that you are doing that for yourself and that there is no
expectation that they act on your crazy-hour messages, or even read or listen
to them, until their regular work day starts. Better yet, do your reminders to
yourself in "Tasks" in Outlook or an app like Evernote so that your
employee will not feel that you're pressuring him to work outside of his normal
*Constantly REMIND your non-exempt employee
that you do not expect him to work outside of his regular schedule even if you
leave messages after his normal hours. Whenever you
leave an outside-work-hours message, be sure to preface it with "When you
come in tomorrow . . ." or "This can wait until you're back in the
office, but . . ." so that he clearly understands you're not expecting him
to take care of it right then and there.
*Make sure your non-exempt employee knows to
include on her time records any "extra" hours she put in. You
will never be able to avoid some work outside normal hours. But make sure your
non-exempt employee understands that she is to be paid for this time and must
put it on her timesheet. A lot of non-exempt employees do not realize this --
they think of themselves as professionals, just as you do.
*If you can't afford to pay overtime, let
your non-exempt employee "make up" the extra work time by taking off
early . . . in the same workweek. Unless you're a government
employer, there is no such thing as "comp time." But the FLSA
overtime requirements apply only to hours worked in a single workweek. So if
you need for your non-exempt employee to work late on Monday, give her Friday
afternoon off. She'll probably love it, and if the afternoon off gets her hours
for the week to 40 or less, you won't owe any overtime. (This is what they call
a "win-win.") To repeat: the "make-up" time off must be
taken in the same workweek. If it can't be made up in the same workweek, you
will owe the overtime pay.
NOTE TO CALIFORNIA EMPLOYERS: In California,
overtime is calculated on a daily basis, so this won't work for you.
OK, OK, but what do you do if your employee
continues to disobey your instructions to avoid off-clock work?
*Do treat it as a disciplinary issue. First,
make sure your expectations have been clearly communicated and that you are not
"winking" at off-clock work. Realize that most employees want to do a
good job and please their bosses, so make sure you aren't giving off vibes that
make your employees think off-clock work is expected, no matter what you may
If you have not communicated your expectations clearly
before, do so now. If you used to "suffer" off-clock work and have
decided to turn over a new leaf, make sure your employees know that the rules
have changed and that you sincerely mean it. Once you are comfortable
that they know (and believe) the expectations, start with an oral counseling
the first time you catch them working off the clock. If it happens again, up it
to a written warning. Continue with the progressive steps, and if you have to
eventually terminate, then terminate. Even if you don't win your unemployment
case, that's not the end of the world. Much better to lose the
unemployment "battle," but prevent or win a collective or class
action "war" under the FLSA or state wage-hour law.
*Do. Not. Dock.
There may be some very limited instances in which you can dock (but don't ever
try it without the advice of qualified counsel), but in 99.9999 percent of the
cases, you should not dock an employee's pay when the employee worked without
One final word of caution: Pay attention to
your surroundings. You may see employees looking like former
President Ford in the black-and-white photo above, or coming in early, or
leaving late. If you see those goings-on and don't do anything, chances are you
will be found to have "suffered" your employees to work.
Bonus word of caution: In case the preceding
post has not made this clear, "salaried"
does not equal "exempt." (Scroll down to Number 3.)
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and
employment law firm Constangy, Brooks & Smith, LLP.
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