Protecting companies from hourly employees
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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.
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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.
Agreed. Which is inline with this article I just read.
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The game here is much like a car chase I was involved in once. The cops wanted to catch someone speeding, so to get the speed up their never turned on their lights or siren. That doesn't change that speeding is not allowed, but it is not resisting arrest until they attempt to pull you over. Someone took the opportunity to make it a high speed car chase and outrun the cops who foolishly decided to play a game of "get the speed up" instead of just turning on the lights and giving a small ticket.
Same thing here, HR is playing a game of not making it disallowed to work off hours. The lack of policy alone makes the employees more or less allowed to do it. That IT is playing games to make it a cat and mouse thing and HR is refusing policy decisions would, I would think, make it clear to a court that work outside of stated hours was totally allowed. That so much effort was put into not not allowing it makes it obvious that it is indeed allowed. Insane, but allowed.
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@scottalanmiller said in Protecting companies from hourly employees:
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.
What this doesn't say - but of course you'll argue that it was vague in saying - is that manager did or didn't approve their continued work. In this situation, yes the employees should be paid according to the webposting, but then the employees should be written up or fired for non compliance with the HR policy - i.e. they didn't get approval to work.
In this case, the manager assume the employees were volunteering their time as suggested by someone above. -
@Dashrender said in Protecting companies from hourly employees:
In this case, the manager assume the employees were volunteering their time as suggested by someone above.
Which is not allowed according to the link DOL artilce. Management knows. They must be paid.
So pay them, write them up, fire them.
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@Danp said in Protecting companies from hourly employees:
Agreed. Which is inline with this article I just read.
Unless it is a tiny company that only has an owner and no other managers, and that owner is unavailable, how could this even come up as an example case? And companies that small rarely fall under DoL protection anyway. If your manager is out, you just go to their manager instead. There is never reasonably no one around to approve overtime.
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@Dashrender said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
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.
What this doesn't say - but of course you'll argue that it was vague in saying - is that manager did or didn't approve their continued work. In this situation, yes the employees should be paid according to the webposting, but then the employees should be written up or fired for non compliance with the HR policy - i.e. they didn't get approval to work.
In this case, the manager assume the employees were volunteering their time as suggested by someone above.The approval is implicit in the knowledge. Once the manager knows and does not send them home immediately, it is approved. That's how that works.
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@JaredBusch said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
In this case, the manager assume the employees were volunteering their time as suggested by someone above.
Which is not allowed according to the link DOL artilce. Management knows. They must be paid.
So pay them, write them up, fire them.
How does this situation even get this far? Are people really doing this or is it a thought exercise?
I just can't even this whole post.
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@MattSpeller said in Protecting companies from hourly employees:
@JaredBusch said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
In this case, the manager assume the employees were volunteering their time as suggested by someone above.
Which is not allowed according to the link DOL artilce. Management knows. They must be paid.
So pay them, write them up, fire them.
How does this situation even get this far? Are people really doing this or is it a thought exercise?
I just can't even this whole post.
It's a thought exercise because his boss is nuts and has imagined a problem that only exists because their HR manager (same person) adamantly refuses to do their job and their bosses refuse to fire them.
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@MattSpeller said in Protecting companies from hourly employees:
@JaredBusch said in Protecting companies from hourly employees:
@Dashrender said in Protecting companies from hourly employees:
In this case, the manager assume the employees were volunteering their time as suggested by someone above.
Which is not allowed according to the link DOL artilce. Management knows. They must be paid.
So pay them, write them up, fire them.
How does this situation even get this far? Are people really doing this or is it a thought exercise?
I just can't even this whole post.
@Dashrender's company has more than just this issue, so yes, it happens.
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@Danp said in Protecting companies from hourly employees:
@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.
See, this is where the BS is. Basically, if there isn't some sort of proof that shows that an hourly employee was told to leave, and to get off the clock, then hourly employees can soak a company. Sure in the end, the employee will probably be fired after sever and specific HR policies are put in place, but it's ridiculous that an employee can just choose to work more than their assigned hours.
Both of Scott's provided examples are examples of the employees CHOOSING to work after their assign hours. Management might have 'been aware', but for crying out loud, are we not adults? Do we have to be told.. now children, it's 5 PM. Punch out and go home and do NOT work on anything for my business because I'm not paying to to do that again until tomorrow morning at 8 AM. Really we have to go there? WTF? LOL
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@scottalanmiller said in Protecting companies from hourly employees:
At best you pay them once, and only once. But if HR policy is correct, I don't believe that you have to.
I hope that you have a good legal team on staff.
Going home and intentionally logging back in to work would be fraud - intentionally stealing time from the business.
You have a warped POV. How is working from home, even if unauthorized, "stealing time" from the business?
Your HR policy cannot override the DOL rules regarding employee compensation. What it can do is protect you when it comes time to terminate the employee for violations of said policy.
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@Danp said in Protecting companies from hourly employees:
@scottalanmiller said in Protecting companies from hourly employees:
At best you pay them once, and only once. But if HR policy is correct, I don't believe that you have to.
I hope that you have a good legal team on staff.
That's why this doesn't happen to us
Good training, good staff, good lawyers. Seriously, extortion is a criminal activity, you don't pay extortion money. -
@Danp said in Protecting companies from hourly employees:
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).
See, exactly what I was talking about - using the computer system to show work. if someone is in our EHR, they are clearly doing work - it would be near useless for making party plans. Sure I mentioned email earlier, but we definitely shouldn't be limited to that alone.
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@Danp said in Protecting companies from hourly employees:
You have a warped POV. How is working from home, even if unauthorized, "stealing time" from the business?
How is it not? You know that you are not allowed to do "work", no matter what it is, off hours. Yet you do so, why? Because you get paid for it. That's theft, as plain as plain can be. How is it not theft? What else can it even seem to be?
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@Danp said in Protecting companies from hourly employees:
Your HR policy cannot override the DOL rules regarding employee compensation.
Correct, and it doesn't. If an employee is trespassing on your systems when they are not allowed to be working through clearly communicated policy the DoL pretty clearly seems to agree that they do not get paid when attempting to steal from the company.
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@scottalanmiller said in Protecting companies from hourly employees:
And companies that small rarely fall under DoL protection anyway.
I'm not aware of any DOL exemption based on company size. Please cite your source.
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@scottalanmiller said in Protecting companies from hourly employees:
@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.
In this guy's case I'd say the case for fraud it much more in his court. The employee clocked out, yet kept working. If the manager told them to clock out and keep working, well in that case, the company would be liable. I can think of no other reason an hourly employee would stick around after punching out - well other than fear of loosing their job for not putting in unpaid OT, which then of course the company should be spanked!!
