Question: When is your most diligent worker also your biggest lawsuit risk?
Answer: When that nonexempt employee works through his or her lunch break or during other off-the-clock hours—a fact nobody realizes (or turns a blind eye to) until he or she sues for unpaid overtime.
Even if your policies require nonexempt employees not to work during meal breaks and to get supervisor approval for overtime, that’s not enough. Supervisors need to enforce those policies diligently—especially these days.
Lawsuits over unpaid off-the-clock work have spiked during the recession as fewer employees are struggling to finish the same amount of work. Technology has also fueled the fire, as iPhones and BlackBerrys allow employees to perform work anywhere, anytime.
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Nearly three-quarters of employees say they “frequently” or “occasionally” work through lunch, says a recent Society for Human Resource Management (SHRM) survey. The main reasons: self-imposed pressure (52%), meeting project goals (44%) and pressure from supervisor (21%).
Case 1: This summer, employees at three Pittsburgh hospitals launched a class-action suit claiming they weren’t paid for work during their lunch breaks.
Case 2: Bank of America was recently slapped with a class-action by tellers who claim they were required to work beyond their scheduled shifts and through their lunch breaks without pay.
Case 3: Just last month, more than 500 workers at a Massachusetts health care firm sued. The lead plaintiff’s attorney said the company’s payroll system would “automatically deduct 30 minutes or an hour from an employee’s paycheck and assume they went on their lunch break, when quite regularly the employees work without a lunch break due to the demands of their position.”
Enforce, don’t just proclaim
If employees work overtime and your organization benefits from it, you must pay for those hours—whether or not you approved them.
That’s why just saying no to overtime isn’t enough. Supervisors must enforce your no-work-during-lunch or no-overtime-without-approval policies. You can’t punish violators by refusing to pay them for the extra hours, but you can discipline them for such insubordination in other ways—up to termination.
Another option: Instead of providing an unpaid lunch period, provide a 30-minute break that’s part of the day’s eight-hour work period. In other words, pay for the time. That way, employees can’t come back later and claim they worked through their lunch periods and should be paid.
To see if you need to attend our Wage-ing War webinar , test your knowledge:
- When an hourly employee travels across town or across the country, which hours are paid? What if a delayed flight causes an unexpected overnight stay?
- If employees are required to change into a uniform at work, must you pay them for that time? If so, how s-l-o-w-l-y can they change clothes while the clock is running?
- No matter how many times you tell employees to punch in and out, they occasionally forget. What recourse do you have with repeat offenders?
- Your exempt employee went on vacation but occasionally checked e-mail from the beach. Can that later be used as evidence in an overtime case?
Learn these and many more FLSA answers by listening in to our popular webinar!
- A management trainee works alongside hourly workers for his first week. Does that put his FLSA exemption in jeopardy?