Protecting companies from hourly employees
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Of course the employer could tell the employee that their new schedule is from 8PM to 5AM to get them to knock it off.
There are plenty of legal ways to adjust the behavior that would work to get the employee to change their habits.
Of course, it's often easier to just terminate the employee for failing to follow HR policy.
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@DustinB3403 said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
@DustinB3403 said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
@Danp said in Protecting companies from hourly employees:
Sorry, but that's not the way it works. You have to pay the employee for the hours worked. Then you counsel / discipline per the HR policy.
Not paying the employee can lead to much larger issues with the DoL.
That's not correct. If you tell someone to go home and they refuse they are trespassing, not working. Not the same thing. But you have to have a policy that makes it clear that they can't do overtime without something in writing.
In NY, you have to have a policy stating overtime will not be allowed without written consent (and have all employees sign it). If an employee does work over time, you still legally have to pay for that time.
And then you can discipline them for breaking company policy. But you are still forced to pay for time worked.
This assumes you know about it. You can't pay something you are unaware of.
Actually no, it means you know that an employee is working beyond their scheduled work period. Even the slightest hint of work being completed outside of the work-schedule means over time for the employee.
There is no such thing as worker-fairies.
@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.
Again, you can't pay if you are unaware. Worker fairies - ha!
I know of almost no place that the managers have such a lock down on what is done and what isn't they would know based on completeness of work that someone worked outside their shift.
As the examples both pointed out - the manager KNEW that the employees were working. But if they don't know, they aren't held liable for the pay.
Now we ask - why are you doing work when the boss doesn't know you're doing the work?
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@Dashrender said in Protecting companies from hourly employees:
@DustinB3403 said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
@DustinB3403 said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
@Danp said in Protecting companies from hourly employees:
Sorry, but that's not the way it works. You have to pay the employee for the hours worked. Then you counsel / discipline per the HR policy.
Not paying the employee can lead to much larger issues with the DoL.
That's not correct. If you tell someone to go home and they refuse they are trespassing, not working. Not the same thing. But you have to have a policy that makes it clear that they can't do overtime without something in writing.
In NY, you have to have a policy stating overtime will not be allowed without written consent (and have all employees sign it). If an employee does work over time, you still legally have to pay for that time.
And then you can discipline them for breaking company policy. But you are still forced to pay for time worked.
This assumes you know about it. You can't pay something you are unaware of.
Actually no, it means you know that an employee is working beyond their scheduled work period. Even the slightest hint of work being completed outside of the work-schedule means over time for the employee.
There is no such thing as worker-fairies.
@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.
Again, you can't pay if you are unaware. Worker fairies - ha!
I know of almost no place that the managers have such a lock down on what is done and what isn't they would know based on completeness of work that someone worked outside their shift.
As the examples both pointed out - the manager KNEW that the employees were working. But if they don't know, they aren't held liable for the pay.
Now we ask - why are you doing work when the boss doesn't know you're doing the work?
Which goes back to the employer must know the employee is working. The real simple approach to it is "does the employee have even the slightest clue that work is being completed outside of the employee shift?" If yes, pay them.
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@DustinB3403 said in Protecting companies from hourly employees:
Simply put @Dashrender there is no way to legally stop an employee from being entitled to overtime pay.
Company policy will give your employer legal grounds to terminate the employee for working overtime, but the employee is still entitled to the overtime pay.
I never said there was - what I said is - if the employee is doing work, and management is unaware, then management doesn't have to pay.. i.e no sufferage or permitted was done. the employee did it completely on their own with management having no knowledge, granted this is probably pretty rare thing.
But in my case, technically I have staff who are doing it. They are logging into our systems outside of hours to plan their day at work. This is something that should be done on the clock while onsite. Not something they should be doing at home.
Now that we are aware of it, we have to pay them for doing it, and discipline them for doing it to make sure they stop doing it, so we can stop paying them.
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@Dashrender said in Protecting companies from hourly employees:
@DustinB3403 said in Protecting companies from hourly employees:
Simply put @Dashrender there is no way to legally stop an employee from being entitled to overtime pay.
Company policy will give your employer legal grounds to terminate the employee for working overtime, but the employee is still entitled to the overtime pay.
I never said there was - what I said is - if the employee is doing work, and management is unaware, then management doesn't have to pay.. i.e no sufferage or permitted was done. the employee did it completely on their own with management having no knowledge, granted this is probably pretty rare thing.
But in my case, technically I have staff who are doing it. They are logging into our systems outside of hours to plan their day at work. This is something that should be done on the clock while onsite. Not something they should be doing at home.
Now that we are aware of it, we have to pay them for doing it, and discipline them for doing it to make sure they stop doing it, so we can stop paying them.
Yes, the business has to pay the employees for that work. At the same time there isn't a reason that management wouldn't be aware of it with logging.
Just because said logging isn't configured doesn't make management unaware that working is being completed outside of work. It just means that management is uninformed, but capable to determine when working is being completed.
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@DustinB3403 said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
@DustinB3403 said in Protecting companies from hourly employees:
Simply put @Dashrender there is no way to legally stop an employee from being entitled to overtime pay.
Company policy will give your employer legal grounds to terminate the employee for working overtime, but the employee is still entitled to the overtime pay.
I never said there was - what I said is - if the employee is doing work, and management is unaware, then management doesn't have to pay.. i.e no sufferage or permitted was done. the employee did it completely on their own with management having no knowledge, granted this is probably pretty rare thing.
But in my case, technically I have staff who are doing it. They are logging into our systems outside of hours to plan their day at work. This is something that should be done on the clock while onsite. Not something they should be doing at home.
Now that we are aware of it, we have to pay them for doing it, and discipline them for doing it to make sure they stop doing it, so we can stop paying them.
Yes, the business has to pay the employees for that work. At the same time there isn't a reason that management wouldn't be aware of it with logging.
Just because said logging isn't configured doesn't make management unaware that working is being completed outside of work. It just means that management is uninformed, but capable to determine when working is being completed.
Scott has already shot down the need to check logs... IE the employee could be working on paper based things, no logging exists. And no you don't have to pay until you find out. Then you have to pay, then discipline then for breaking policy.
But if you never find out, then you don't have to pay.
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@Dashrender said in Protecting companies from hourly employees:
@DustinB3403 said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
@DustinB3403 said in Protecting companies from hourly employees:
Simply put @Dashrender there is no way to legally stop an employee from being entitled to overtime pay.
Company policy will give your employer legal grounds to terminate the employee for working overtime, but the employee is still entitled to the overtime pay.
I never said there was - what I said is - if the employee is doing work, and management is unaware, then management doesn't have to pay.. i.e no sufferage or permitted was done. the employee did it completely on their own with management having no knowledge, granted this is probably pretty rare thing.
But in my case, technically I have staff who are doing it. They are logging into our systems outside of hours to plan their day at work. This is something that should be done on the clock while onsite. Not something they should be doing at home.
Now that we are aware of it, we have to pay them for doing it, and discipline them for doing it to make sure they stop doing it, so we can stop paying them.
Yes, the business has to pay the employees for that work. At the same time there isn't a reason that management wouldn't be aware of it with logging.
Just because said logging isn't configured doesn't make management unaware that working is being completed outside of work. It just means that management is uninformed, but capable to determine when working is being completed.
Scott has already shot down the need to check logs... IE the employee could be working on paper based things, no logging exists. And no you don't have to pay until you find out. Then you have to pay, then discipline then for breaking policy.
But if you never find out, then you don't have to pay.
Try proving that the business never knew. There is always a log of some sort (a paper trail)
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And your original question specifically pertains to use of computer systems.
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To disallow users to sign in, you could use time restrictions and GPO.
But this time that the employee is still trying to sign in is still "payable time". Of course, at that point management would slap the employee, and hopefully the issue would stop occurring.
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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.
The law agrees with this stance as well.
Pay and then punish.
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@scottalanmiller said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
@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.
This totally disagrees with your first quoted situation above - Which specifically stated that the HR policy said no OT unless approved. The boss knowing you're doing it is not, to me, defacto approval - but according to the situation above is it.
How does it disagree? The company knowing is obviously implicit approval. So I see this as totally in agreement.
And the DoL would also agree that it's approved OT. The argument stands.
If management in anyway knows that work is being completed outside of scheduled hours, and allows it, it means the company agrees that OT is required for the job and is willing to pay said OT.
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@DustinB3403 said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
@DustinB3403 said in Protecting companies from hourly employees:
Simply put @Dashrender there is no way to legally stop an employee from being entitled to overtime pay.
Company policy will give your employer legal grounds to terminate the employee for working overtime, but the employee is still entitled to the overtime pay.
I never said there was - what I said is - if the employee is doing work, and management is unaware, then management doesn't have to pay.. i.e no sufferage or permitted was done. the employee did it completely on their own with management having no knowledge, granted this is probably pretty rare thing.
But in my case, technically I have staff who are doing it. They are logging into our systems outside of hours to plan their day at work. This is something that should be done on the clock while onsite. Not something they should be doing at home.
Now that we are aware of it, we have to pay them for doing it, and discipline them for doing it to make sure they stop doing it, so we can stop paying them.
Yes, the business has to pay the employees for that work. At the same time there isn't a reason that management wouldn't be aware of it with logging.
Just because said logging isn't configured doesn't make management unaware that working is being completed outside of work. It just means that management is uninformed, but capable to determine when working is being completed.
Capable of determining is questionably possible. HOW can they know? HOW can they find out? You can't legally know that in many cases, what do you propose?
Also, the law says nothing have the company needing to look for this, if the employee is falsifying records, it's on them, not the company.
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@DustinB3403 said in Protecting companies from hourly employees:
To disallow users to sign in, you could use time restrictions and GPO.
But this time that the employee is still trying to sign in is still "payable time". Of course, at that point management would slap the employee, and hopefully the issue would stop occurring.
Yup, that's an issue. They could try to log in, try to fix their phone, put in a ticket for IT support... all billable time.
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@DustinB3403 said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
@DustinB3403 said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
@DustinB3403 said in Protecting companies from hourly employees:
Simply put @Dashrender there is no way to legally stop an employee from being entitled to overtime pay.
Company policy will give your employer legal grounds to terminate the employee for working overtime, but the employee is still entitled to the overtime pay.
I never said there was - what I said is - if the employee is doing work, and management is unaware, then management doesn't have to pay.. i.e no sufferage or permitted was done. the employee did it completely on their own with management having no knowledge, granted this is probably pretty rare thing.
But in my case, technically I have staff who are doing it. They are logging into our systems outside of hours to plan their day at work. This is something that should be done on the clock while onsite. Not something they should be doing at home.
Now that we are aware of it, we have to pay them for doing it, and discipline them for doing it to make sure they stop doing it, so we can stop paying them.
Yes, the business has to pay the employees for that work. At the same time there isn't a reason that management wouldn't be aware of it with logging.
Just because said logging isn't configured doesn't make management unaware that working is being completed outside of work. It just means that management is uninformed, but capable to determine when working is being completed.
Scott has already shot down the need to check logs... IE the employee could be working on paper based things, no logging exists. And no you don't have to pay until you find out. Then you have to pay, then discipline then for breaking policy.
But if you never find out, then you don't have to pay.
Try proving that the business never knew. There is always a log of some sort (a paper trail)
Nope, certainly is not. In fact, show me anything that proves it, let alone anything that means that they always know. I'm thinking about work right now, what paper trail is there? I log in to check on video game info, there is a paper trail that tells that I logged in but says nothing about me working. You are at work right now, logged in, are you working or not? There is, in nearly all cases, literally nothing that tells a company if you are or are not working. You think that a company always knows, the reality is very, very much the opposite - the company almost never knows.
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@DustinB3403 said in Protecting companies from hourly employees:
The real question that @Dashrender asked is "there a way for us to not be forced to pay for overtime" and the answer is no.
Employee protection laws exist to protect employees from employers who simple don't want to pay for work.
There is no such thing as a donation of time if the employer is for profit. The only option the company has is to create HR policy, have all employees sign off on it, and then enforce said policy.
Which to summarize is go home, we don't want you working today (or to keep the employees hours under the overtime limit), and eventually termination.
But even in these cases the employer still must pay for time worked.
No, the question is what do I do to protect my company?
The answer is - get an HR policy, and fire anyone who doesn't abide by it. It might not keep all OT off the books, but it will be low per employee, and if employees see others getting fired for having OT, and they don't want to be on their ear, they won't be getting any OT either.
We are not looking to abuse people. What management is wanting is to ensure people don't get it when they aren't suppose to have it. Sadly it seems like there is no way to get this, so the next best thing is to fire people who don't follow the rules of no OT unless authorized.
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@scottalanmiller said in Protecting companies from hourly employees:
@DustinB3403 said in Protecting companies from hourly employees:
To disallow users to sign in, you could use time restrictions and GPO.
But this time that the employee is still trying to sign in is still "payable time". Of course, at that point management would slap the employee, and hopefully the issue would stop occurring.
Yup, that's an issue. They could try to log in, try to fix their phone, put in a ticket for IT support... all billable time.
huh, Yeah I don't agree with these things - under the huge assuming that management doesn't know that they are doing these things. Sure once management knows - then tells them to stop or be fired.. sure then the company owes them, then fires them.
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@Dashrender said in Protecting companies from hourly employees:
Sadly it seems like there is no way to get this, so the next best thing is to fire people who don't follow the rules of no OT unless authorized.
I think that this is the wrong way to think about it. This is just business basics. That tech was ever considered for involvement just shows more of the business failings that got us here in the first place. Being billable and "being on a computer" are different things. Someone is just trying to avoid doing their job. There is nothing sad about management needing to do its job. And it isn't the next best thing to have management do its job, even if this technology could guarantee that no one could log in, it would be pointless. So it's not sadly that management needs to step up, it's just reality. In fact, a happy one. In no way, whatsoever, is this your issue.
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@Dashrender said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
@DustinB3403 said in Protecting companies from hourly employees:
To disallow users to sign in, you could use time restrictions and GPO.
But this time that the employee is still trying to sign in is still "payable time". Of course, at that point management would slap the employee, and hopefully the issue would stop occurring.
Yup, that's an issue. They could try to log in, try to fix their phone, put in a ticket for IT support... all billable time.
huh, Yeah I don't agree with these things - under the huge assuming that management doesn't know that they are doing these things. Sure once management knows - then tells them to stop or be fired.. sure then the company owes them, then fires them.
You don't agree but you can say that about anything. Took a call but didn't make a sale, then I say you weren't working. Got to your desk and your computer was broken, you weren't working. You can not agree all you want, but in the world of "employees can work without permission", the absolutely anything is working if they want it to be.
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@Dashrender said in Protecting companies from hourly employees:
No, the question is what do I do to protect my company?
The answer is ....
...nothing because you work in IT, which is not a department that can fix these things.
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@Dashrender How are the employee hours being tracked / reported? Do the managers have access to review their "punches" on demand?
