Technology bytes; the FLSA bites harder — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Technology bytes; the FLSA bites harder

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Odds are your company has a website. If you’re thinking of enhancing that website, say, with employee-written blogs, be careful. A federal trial court provided a stark reminder of the Fair Labor Standards Act’s (FLSA) rule that nonexempts can’t volunteer any time to their employers when it ruled that a nonexempt who volunteered to write a company blog can pursue her claim for unpaid overtime. (Tagupa v. VIPDesk, Inc., No. 13-00428 JMS-KSC, D.C. Haw., 2015)

Any volunteers? In order to be a “team player,” and to maintain her eligibility for raises and promotions, a nonexempt employee responded to an email that asked for volunteers to blog about the company. According to the employee, she spent 2,084 hours of her own time preparing blog posts, among other uncompensated activities.

The employee complained about not being paid for this time, which she calculated at almost $31,000. She also said that she thought the call was for volunteer bloggers, not that employees would also volunteer their time. She was fired after complaining, seemingly for poor performance and sued for the unpaid overtime. Employer: The company isn’t liable for the unpaid overtime because the employee didn’t ask permission to work the overtime. It also argued that the employee lied about her uncompensated time.

Case heads to trial. The company asked the trial court to summarily rule in its favor. The court refused to do so. Court: There are too many questions to rule in the company’s favor now. The company could reasonably infer that it knew what the employee was doing and that she wanted to be paid for her time. In addition, the employee’s estimate of her time was acceptable, the court said, because employees rarely keep meticulous time records. After employees reasonably estimate their working time, it’s up to the employer to show the precise amount of work performed, the court added.

Three FLSA Lessons

This case is a good reminder of several basic FLSA principles. First, under no circumstances can nonexempts who work for private sector employers volunteer their time to their employers. Second, you don’t have to have actual knowledge that employees worked to be liable for unpaid working time; an inference that they worked is usually sufficient. Finally, ­employees don’t have to present exact records of their ­working time; their reasonable estimate of their working time is enough. Bottom line: If you suspect employees have worked, pay them. You can then discipline them for not seeking permission to work. You should also discipline their supervisors for tolerating the uncompensated work.

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