Make sure rigorous performance expectations don’t drive employees to work off the clock

You may be tempting fate—and a Fair Labor Standards Act (FLSA) class-action lawsuit—if you demand so much productivity from employees that they can’t reasonably get everything done within the time you allow. The problem: Employees may feel compelled to work off the clock.

Here’s how it could happen. You tell your managers that employees must track all their time, and then set high expectations for what they must accomplish during that time. The managers push the employees to get the work done, threatening discipline if they fall short. The workers then do the rational thing: They come in early or stay late to meet their quotas and your expectations.

And then someone files an FLSA lawsuit, representing all affected employees.

Recent case: Heather and several other call center employees sued their employer, Verizon Wireless, claiming they worked before and after their shifts but weren’t paid for that time.

According to the employees, before they logged into the call center system each morning at the beginning of their shifts, they spent time checking email, logging onto the system and otherwise preparing for the calls that would soon begin. Then they reversed the process after the end of their scheduled shifts.

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Verizon told the court that it neither encouraged nor condoned off-the-clock work, and that the employees could have read email and performed other routine tasks between calls.

The employees said there was literally no time to do so between calls.

Heather and the other plaintiffs sought to represent all other employees who were affected by the same expectations.

The court said they could proceed with the class action, based on their representation that management’s expectations could not be met during regular working hours. Of course, they will now have to prove that was the case. (Jennings, et al., v. Verizon, No. 12-00293, DC MN, 2012)

Off-the-clock work and record-keeping provisions

At the heart of this case is recordkeeping. Employers have to find a way to track all hours employees work. Any system—like the one used here—that fails to take into account preparation time and routine tasks like checking email spells trouble.

Maintain pay records of all hours worked. Using a time clock can simplify this task. When paper time sheets are used, it’s important to use a form that clearly sets out unpaid break time.

Ensure that employees are completely released from their duties during meal breaks. That helps to counter claims (perhaps years later) that they were required to work through lunch. That brief lunch period, 30 or 60 minutes, can add up to a lot of hours—and money—if the Department of Labor determines that the time was compensable under the FLSA or a group of former employees decides to sue.

Above all else, make sure the work that needs to be done can actually be done in the allotted hours. Otherwise, employees will find a way to get the work done outside regular paid time, but only for so long.

Remember, it takes just one burnt-out and angry employee or former employee to start a class-action lawsuit.

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