Did ‘no policy’ policy force off-the-clock work?

A federal court has rejected a novel employee argument that an employer’s lofty sales goals and lean staffing amounted to a silent policy that required off-the-clock work.

Recent case: Several employees who sold cellphones, accessories and service at kiosks in shopping malls filed a class-action Fair Labor Standards Act lawsuit demanding back overtime pay. They sought to represent all co-workers who were similarly situated.

Their claim: That they had all been forced to work off-the-clock without pay. However, they couldn’t point to any common policy or practice such as a software program that blocked entering overtime hours.

Instead, they argued that their employer had a de facto policy requiring off-the-clock work that affected each worker differently.

For example, one former employee argued that because his sales region had a strict dollar limit on labor costs and a long list of tasks employees had to perform, the inevitable (and intended) result was forcing him to work off-the-clock. If he didn’t, work would remain unfinished. The suit said this was, in effect, a “no policy policy” designed to thwart litigants.

The court disagreed. It reasoned that setting a labor budget or having a demanding sales model does not mean the employer condones or expects unpaid overtime. The court said no to the class action. Each employee will have to prove his or her individual claim. (Lindsey, et al., v. Clear Wireless, No. 13-834, DC MN, 2016)

Final note: When attorneys have to prove individual violations one by one, lawsuits become much less likely. It’s much more lucrative for attorneys to go after employers that actively encourage off-the-clock work.