You’ve no doubt heard the adage that ignorance of the law is no excuse. But what you may not know is that it’s up to employers to prove they took concrete steps to overcome that ignorance if the law in question is the Fair Labor Standards Act ().
Here’s how it works: The FLSA, which spells out when and to whom employers must pay overtime, includes a penalty of double the amount that should have been paid to the employee who didn’t get the overtime. The law says employers that want to avoid that expensive penalty—it could amount to millions of dollars if a group of employees sues—must show the court they acted in good faith when they decided the employees weren’t entitled to overtime.
How do you prove good faith? By providing “plain and substantial proof” that the HR staff orteam responsible for payroll and FLSA compliance took “affirmative steps to ascertain” who gets overtime and who doesn’t.
Recent case: Frank Caminiti, a former New Jersey police officer, complained he hadn’t been paid overtime for all the care and attention he gave the K-9 dog the police department assigned to him. He claimed he spent almost 21 hours per week feeding, playing with and caring for the dog.
The department couldn’t show that it had tried in earnest to determine whether the dog-care time should be included in hours worked. Because it couldn’t, the court sent the case to trial. Caminiti will have to prove how many hours he worked, but it seems likely the court will double any wages due. (Caminiti v. County of Essex, No. 04-4276, DC NJ, 2007)
Final tip: Evidence that you regularly read up on your organization’s FLSA obligations can be part of the proof. So can consulting legal counsel for guidance.