A recent decision by a federal district court in New York
highlights the importance of polices when it comes to FLSA/overtime
issues. Under the FLSA, an employee must be compensated for all
time he or she is "suffered or permitted to work."
In Joza v. WW JFK LLC, a hotel reservation agent claimed
that Ramada did not compensate her for overtime she worked but
purposely did not record on her time sheets. The plaintiff based
her claim on the theory of constructive knowledge. Under this
theory, an employer is accountable for overtime hours it reasonably
should have known the employee had worked, even if the hours were
not recorded on a timesheet. The plaintiff argued that "since
some of the individual defendant supervisors were sometimes in the
vicinity of her workspace while she was eating at her desk, or when
she was present at her desk after her scheduled shift ended, that
they must have realized that she was not only there but working on
hotel business and doing so on overtime."
Ramada, however, defended by stating "corporate policy is for
managers to review each employee's weekly time clock report
and, should the time clock establish that an employee who was on
the hotel premises in excess of that employee's scheduled
hours, the manager was then obligated to make specific inquiry of
the employee to ascertain whether the employee had worked overtime
without submitting the required overtime form."
The court sided with Ramada because Ramada proved that the managers
"followed company policy and protocol designed not to
frustrate legitimate overtime claims, but to ensure that, by the
reconcilement of payroll and time clock records, each employee was
compensated at the appropriate overtime rate for any work actually
performed on an overtime basis."
The court found that the "defendants had no knowledge of
Joza's alleged extra overtime work."
In light of the plethora of FLSA claims, employers should:
- adopt, maintain, monitor, and enforce written policies requiring supervisor approval of overtime requests and overtime hours worked by non-exempt employees;
- educate supervisors not to ask non-exempt employees to perform any work, such as answering a question or a phone call, or responding to an email or a text, during a meal period, otherwise the non-exempt employee is to be paid for the entire meal period or be given another 30 minute, uninterrupted meal period.
- forbid supervisors from discouraging non-exempt employees from recording hours worked on their time sheets. In other words, forbid "off the clock" work;
- prepare forms to be completed by non-exempt employees, and signed off on by a supervisor, that specifies the date of, number of hours spent on, and the reason for, any overtime work;
- pay non-exempt employees for all overtime hours;
- educate supervisors to question non-exempt employees found at their work station before or after their scheduled shift, or during meal breaks, whether they are performing work for the benefit of the employer; and
- compare payroll and time clock records to ensure that non-exempt employees are compensated for all overtime hours actually worked.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.