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Instruct supervisors to prohibit working off the clock

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in Human Resources

A Fair Labor Standards Act (FLSA) overtime claim is one of the most dangerous lawsuits employers can face. If one or two employees claim they worked off the clock before or after punching the time clock, their attorneys may try to represent every employee companywide who did the same thing. And if the court allows them to band together, a case involving a few hours here and there can turn into a multimillion-dollar class-action lawsuit.

It doesn’t have to be that way. Courts require employees to show they were all similarly situated—and if the employer can show that there was no common plan to make employees work without pay, the case stays an individual one.

You can demonstrate your commitment to accurate wage-and-hour practices by showing that managers and supervisors explicitly tell employees not to work before or after clocking in.

Recent case: Lisa and Proctor Duncan worked for a large chain of convenience stores. They sued, alleging their manager made them work before clocking in and after clocking out. The court allowed them to pursue a class action, and attorneys for both sides deposed several employees.

Many said their supervisor or manager had explicitly told them never to work off the clock. Others said they sometimes worked before or after hours, while others still said they worked through breaks or lunch. But no one cited corporate policy—informal or otherwise—that encouraged employees to work without being paid.

The judge refused to let the Duncans bring other employees into their case, concluding that the claims were not similar enough. Plus, noted the court, the fact that many employees said their supervisors didn’t encourage or allow off-the-clock work was good evidence there was no overall company policy to violate FLSA overtime rules. (Duncan v. Allsups Convenience Stores, No. 2:06-CV-255, ND TX, 2008) 

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