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May/June 1999 issue (#39)

Off-The-Clock Work

What You Can Do About It

By David N. Mark, Esq., Free Press Contributor
clock The Violations

Federal and state wage and hour laws prohibit employers from "permitting" employees to perform off-the-clock work. Employers must compensate for all work that they knew about or should have known about. Employers must do everything within their power to prevent off-the-clock work. Not surprisingly, many employers are willing to look the other way while employees perform unpaid work voluntarily or under pressure. Common violations include:

• Allowing or requiring work to be done before the start of a shift, such as pretripping or warming up trucks.
• Allowing or requiring work to be done after the end of a shift, such as clean up, paperwork or completing tasks that "should have" been done during the shift.
• Deducting meal breaks which employees do not take or took with interruptions or significant restrictions.
• No-overtime rules and/or productivity goals or pressure which encourage employees to do some work on their own time.
• Putting employees on a "salary" without overtime pay, even though their job tasks do not fit within the overtime exemptions for "professional," "administrative" or "executive" employees.
• Orientation, training or book work done on "own time" or during unpaid meal breaks.
• Rewarding the "good" employees who are willing to go the extra mile by coming in early, staying late, working through all or part of breaks, taking work home, etc.

It is the rare employer who will go out of its way to prevent these practices from occurring.

The Law Favors Employees

Wage and hour laws are written and interpreted in favor of employees:

• Employers have the obligation to stop work if they do not want to pay for it.
• Employers have almost no defenses: it is no defense that the employees (1) acted voluntarily, (2) tried to hide the work from management, (3) agreed not to seek proper compensation, or (4) entered into an out-of-court settlement of the claims.
• Employees can prove individuals and group cases by reasonable estimation -- not every employee need testify.
• Employees often can recover double back pay.
• If it loses, the employer must pay the employees' attorney in addition to paying damages - this encourages enforcement of relatively small claims and also encourages employers to settle valid claims.
• Exemptions from the overtime and minimum wage requirements (and there are many) are strictly and narrowly construed.
• Employees can go back three years to bring suit - far longer than the time provided for in labor agreements.
• Employees can file suit on behalf of larger groups of employees affected by similar policies or practices.
• Employees can choose from federal and state wage and hour laws, taking the most favorable of each.
• Union members are typically allowed to enforce wage and hour law rights independent of collective bargaining agreement provisions and procedures.
• Judges and juries do not like dishonest or coercive workplace practices.

Wage and hour plaintiffs have it much easier than employees who sue for wrongful discharge, discrimination, breach of the duty of fair representation or many other areas where workers have rights which can be difficult to enforce.

What to do?

Seek advice from an attorney or an agency official if you think your rights may have been violated. Keep in mind, however, that many attorneys do not know the ins and outs of wage and hour law and that many agencies are understaffed and do not aggressively enforce the laws. Therefore, you should be patient and be willing to keep trying until you find the right fit. Try to find an attorney who is willing to take on your case for the "reasonable attorney fee" that the employer must pay if it loses. Be slow to agree to advance expenses or to pay a percentage of a recovery to the attorney. Former employees often make the best plaintiffs, because the employer cannot easily retaliate.

When you experience or hear about workplace abuse, think of wage and hour law. Employers who abuse workers or who are obsessed with productivity are likely to be violating these laws.

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