Stop off-the-clock work with strong OT rules

Hourly employees know that if they work overtime, their employer must pay them for the extra hours. That’s true, but it doesn’t mean they can work OT whenever they feel like it. Here’s how to end unauthorized overtime:

Make clear—in writing and face-to-face discussions—that employees can only work overtime authorized in ad­­vance by a supervisor. Set a policy on overtime approval (see box below) and make sure supervisors understand it and follow it. Explain the consequences. Document those communications.

Then hand out discipline equally to those who don’t follow directions. You can’t refuse to pay them for the nonapproved hours. If a reprimand doesn’t get the message across, try a suspension … or even termination.

Recent case: Newspaper employee Lisa Ritchie was an hourly employee who regularly put overtime hours on her timecard even after being told she could not. The newspaper paid for the extra hours, but fired her for breaking the rules.

Ritchie sued, alleging that entering the hours on her timecard was protected activity and firing her was retaliation.

Tough Talks D

The court didn’t buy her argument. It reasoned that if employers weren’t able to discipline employees for working unapproved hours, it would remove any leverage the employer had to order no overtime. (Ritchie v. St. Louis Jewish Light, No. 10-1356, 8th Cir., 2011)

Note: As overtime lawsuits continue to surge, organizations often try to defend themselves by pointing to their policy that says employees should have received management approval for overtime.

But a written policy isn’t enough.

Federal judges are dealing harshly with employers that try to rely solely on the “no-OT-without-approval” defense. That’s because the Fair Labor Standards Act (FLSA) requires management—not employees—to make sure employees don’t work unpaid overtime hours.

According to the U.S. Department of Labor, “time spent doing work not requested by the employer, but still allowed, is generally hours worked.”

4 ways to stop abuse of unauthorized overtime

  1. Make sure all employees know they must obtain supervisor approval to work overtime—don’t just stick that requirement in a policy handbook.
  2. Develop checks to ensure employees aren’t working off the clock. Example: Insist all hourly employees clock in and out.
  3. Consider additional tracking measures, such as electronic entry cards, to back up reports of hours worked. 
  4. Institute progressive discipline for overtime violators. While you must pay for all hours worked (authorized or not), a couple of days off without pay should stop a repeat offender.

Sample policy: Overtime

“Overtime must be approved by your supervisor in advance and should be included on the time sheet in your total hours worked. (Company) retains sole discretion to determine when employees must work overtime. Working unauthorized overtime hours may lead to discipline under our progressive discipline policy, up to and including termination.”