Protecting companies from hourly employees
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@Dashrender said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
Keep in mind that an employee can claim to be working just for "thinking about" work or talking to someone about work. Or they can work on paper. Or make calls using a personal device. You can spend time arguing about if you need to pay people working when they are not allowed to work, and that will be up to a judge to decide. But access to company resources is not the determining factor, if they want to go over hours they can do it if you grant access or not.
Sure they can, but when using trackable company resources makes their case for them a bit more, at least that's the belief.
It doesn't, though. It presents totally random, useless data. It doesn't show that they are working nor does it show that they are not working.
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@Dashrender said in Protecting companies from hourly employees:
i.e. Jane's listed schedule is 8-5 with 1 hour for lunch unpaid Overtime as needed. Who gets to decide if and when she gets overtime? If the above is all that's listed, who gets to make that call? her? or her boss, or both?
That's obviously handled by HR policy. Normal companies do not have these issues. HR basics solve them 99% of the time. Do you really have an issue where there is no HR policy that tells people who their boss is? Or moreso, who is an approver for them to work?
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https://www.dol.gov/whd/regs/compliance/whdfs53.htm
See section near the bottom regarding unauthorized work.
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@Danp said in Protecting companies from hourly employees:
https://www.dol.gov/whd/regs/compliance/whdfs53.htm
See section near the bottom regarding unauthorized work.
Exactly my point, here is the wording straight from the site: Employees must be paid for work “suffered or permitted” by the employer even if the employer does not specifically authorize the work.
Suffered or permitted, @JaredBusch and I have been very clear that that is the issue that @Dashrender has. They are currently permitted, and any IT attempts to change that are irrelevant. Only an HR policy forbidding it will make something clearly not "suffered or permitted." After you have that policy, you only need to do something more when you know that someone is breaking the policy, no obligation to make it impossible - since you can't (stopping them from thinking, working on paper, discussing, etc.)
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They provide examples for this case as well: A residential care facility pays its nurses an hourly rate. Sometimes the residential care facility is short staffed and the nurses stay beyond their scheduled shift to work on patients’ charts. This results in the nurses working overtime. The director of nursing knows additional time is being worked, but believes no overtime is due because the nurses did not obtain prior authorization to work the additional hours as required by company policy. Is this correct? No. The nurses must be paid time-and-one-half for all FLSA overtime hours worked.
Notice that the nurse was needed, stayed on site and their manager was aware that they were working.. So this example suggests that what @Dashrender is doing is not appropriate.
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Second example: An hourly paid office clerk is working on a skilled nursing home’s quarterly budget reports. Rather than stay late in the office, she takes work home and finishes the work in the evening. She does not record the hours she works at home. The office manager knows the clerk is working at home, but since she does not ask for pay, assumes she is doing it “on her own.” Should the clerk’s time working at home be counted? Yes. The clerk was “suffered and permitted” to work, so her time must be considered hours worked even thought she worked at home and the time was unscheduled.
This one is closer, but still quite different. Someone works from home, it is known that they are working from home. All parties are aware that someone is working from home, same as they would from the office. Again, not applicable here, but at least closer.
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@scottalanmiller said in Protecting companies from hourly employees:
Have you had the DoL tell you that employees claiming to do work was all that it took for them to get billable hours? Even if they had a policy stating that doing so was trespassing and not allowed and that reporting such would be immediate termination? Did you then allow them to do so anyway? I want to know how this happened that people were reporting hours, were not terminated and the DoL audited and found them working?
I've been through two audits, both as a result of employee reporting. The first was an exempt supervisor who didn't like how I handled PTO in conjunction with her hours worked. No finding of fault in this instance.
The other was a situation where the employee was working off the clock, and she filed a complaint after she was terminated. We had to pay her for the amount of time that she hadn't been compensated.
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So from the wording, general logic and the examples given, the DoL would have no grounds for being upset if they audited and found that access was enabled and that the company was not blocking access to some types of company resources.
There is also the questions of things like "is checking mail working?" First, you don't need to know if they are checking it at all. Second, no visible work is being done. Third, they could be using it for non-work activities like scheduling parties, car pooling or the Fantasy Football results.
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@Danp said in Protecting companies from hourly employees:
The other was a situation where the employee was working off the clock, and she filed a complaint after she was terminated. We had to pay her for the amount of time that she hadn't been compensated.
And...
- Was there a counter suite for fraud? Because if this was what we are describing here, there would be if this happened.
- Did anyone know that she was working?
- How did she document work hours while no one knew she was working?
- Was there a clear HR policy stating that she could not do so?
- Did any manager know or approve this?
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Yes, there was an HR policy. Yes, the manager knew. We were able to document her start / stop times by tracking her activity in the computer system. From that we were able to come up with a number of hours worked without compensation. It turned out to be a nominal amount (I believe between $1k and $2k).
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@Danp said in Protecting companies from hourly employees:
Yes, there was an HR policy. Yes, the manager knew.
That's the part that mattered. You had a manager breaking the law. Of course you got audited. So that experience doesn't apply here. It's good to know how that works, but we already knew that part. The thing here is that management does not know. If they did, they need to take proper action (written up, firing, docking time elsewhere, whatever.) But when the employee is doing it secretly without permission, it is not the employer's unlimited obligation to pay whatever the employee claims after the fact. If it was, we'd all do that all the time and be billionaires.
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IMO, it is better to be safe than sorry. Pay the employee for the time worked and then discipline the employee for their violation of the HR policy.
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Chances are that employee thought that by working "for free" that they would get favours, not get fired or whatever. Then they got fired... so that manager either set you up for an audit, possibly even colluded, or was hoping to get away with something. A manager can put the company into a dangerous position like that, sadly.
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@Danp said in Protecting companies from hourly employees:
IMO, it is better to be safe than sorry. Pay the employee for the time worked and then discipline the employee for their violation of the HR policy.
Of course, but that went without saying and doesn't change our recommendations. Blocking with technology serves no business purpose, only HR policy matters. And the HR policy would include the notification and discipline information as well.
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@scottalanmiller said in Protecting companies from hourly employees:
The thing here is that management does not know. If they did, they need to take proper action (written up, firing, docking time elsewhere, whatever.)
An employee who works through lunch, beyond their normal work schedule, etc without explicit authorization would need to be paid for their time. Their manager should know that they are working outside of their normal work schedule.
Of course, but that went without saying and doesn't change our recommendations.
The recommendation from you and @JaredBusch was to not pay them, which is the incorrect position IMO ---
@JaredBusch said in Protecting companies from hourly employees:
If they signed company policy and have no proof of being told, then they do not get paid.
Not your fault the company get to benefit from their work. They were told not to.
@scottalanmiller said in Protecting companies from hourly employees:
Right, it's not working at that point, it's volunteering.
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@Danp said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
The thing here is that management does not know. If they did, they need to take proper action (written up, firing, docking time elsewhere, whatever.)
An employee who works through lunch, beyond their normal work schedule, etc without explicit authorization would need to be paid for their time. Their manager should know that they are working outside of their normal work schedule.
Should is debatable here. How or why would they know? We can't really define working, nor can we figure out when accepted work activities are definitely happening. If the employee wants to hide work, they can do so. A manager can't just overcome that. It would be nice if a manager always knew what an employee was doing, but that's not physically possible.
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@Danp said in Protecting companies from hourly employees:
The recommendation from you and @JaredBusch was to not pay them, which is the incorrect position IMO ---
Okay, you pay them, terminate them and sue them for theft.
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I would ask a labor lawyer to verify. but even if they should be paid, they should then be paid, disciplined, and then fired if it continues. No need for IT involvement at all.
This is the problem with @Dashrender's company. Management refuses to do this.
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@Danp said in Protecting companies from hourly employees:
The recommendation from you and @JaredBusch was to not pay them, which is the incorrect position IMO ---
At best you pay them once, and only once. But if HR policy is correct, I don't believe that you have to. If they have accepted that anything outside of hours is not work, it's not work unless something overrides that. Going home and intentionally logging back in to work would be fraud - intentionally stealing time from the business. I don't think that any DoL policy supports paying through extortion in that way. If you allow it to keep happening, of course things change. But if you treat it as trespass and extortion, you don't.
Also, keep in mind, we are talking about first time offenders - if they are not reporting that they are working and no one knows that they are working the legal issues are all on the employee. You have bad faith and attempt to defraud if they report it later.
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@JaredBusch said in Protecting companies from hourly employees:
I would ask a labor lawyer to verify. but even if they should be paid, they should then be paid, disciplined, and then fired if it continues. No need for IT involvement at all.
This is the problem with @Dashrender's company. Management refuses to do this.
Right, no matter what the answer is, the one thing that we know for sure is that this is 100% an HR function and in no way an IT function.
In fact, if I was an employee, @Dashrender's company it turning this into a game. They avoid HR policies and try to make it "hard" to work. Until there is a policy, the employees are free to attempt to work and bill for it all that they want.
