If you did not give an employee permission to work overtime but he or she does so anyway, under the Fair Labor Standards Act (FLSA), you must pay the employee overtime wages. However, this unauthorized overtime pay might end up taking a lot out of your company's budget if many people are working - and being paid - unauthorized overtime. So you need to be aware of all rules and regulations regarding overtime.
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As noted in §785.11 of the FLSA, “Work not requested but suffered or permitted is work time.” The FLSA’s reasoning is that if the employer knew or had reason to believe the employee was working overtime hours then the employee should be paid overtime wages. In addition,§785.13 of the FLSA puts the onus of prevention on the employer, stating that it is management’s job to avoid unauthorized overtime. In other words, it’s up to managers and supervisors to practice good time and attendance management that ensures that employees stop working after their scheduled shift has ended and do not work overtime.
Even states that have their own overtime laws require payment for all hours worked, including unauthorized overtime.
Overtime in different States
Different States have different overtime laws. Make sure you know which law applies to your State. For example:
- Alaska requires overtime pay for any time worked over 8 hours in any workday or 40 hours in any given work week. Employers with less than 4 employees are exempt from the state's overtime pay rule.
- Vermont requires overtime pay for time worked over 40 hours, but state law exempts a variety of industries, including retailers, hotels, and restaurants, from the overtime rule. Federal overtime requirements may nevertheless apply.
- California requires overtime pay of time-and-a-half for hours worked over 8 in a day, 40 in a week, and for the first 8 hours of the seventh day worked in a week. Double pay is required for any hours worked over 12 in a day or in excess of eight hours on any seventh day of a workweek.
- Colorado requires overtime pay for hours worked over 40 in a week, over 12 hours in a given day, or over 12 consecutive hours.
In general, overtime pay is granted for hours worked over 40 in a week all over the United States at the federal lever, but there are often different specificities that change from state to state.
Avoiding the pitfalls of unauthorized overtime
Unauthorized overtime adversely affects a company in two major ways. First, under federal law, overtime hours must be paid at 1.5 times the employee’s regular hourly wage. Because unauthorized overtime normally is not accounted for in the company’s budget, it puts the employer in the position of compensating the employee for wages it may not be prepared to pay.
Second, unauthorized overtime, if left unmonitored, sends the wrong message to employees: that they can work overtime whenever they please, without repercussion. Some employees do take advantage of the system and work unauthorized overtime despite not being given permission to do so, which can have adverse effects on a company.
Establishing an overtime policy
The FLSA does not prohibit employers from having a policy that forbids unauthorized overtime, and it does not bar employers from disciplining employees who breach such policies. Therefore, employers should develop a written policy that clearly prohibits unauthorized overtime, because this policy can serve as an effective deterrent against unnecessary overtime.
Details of the overtime policy should be included in your employee handbook, but remember that employees are notorious for skimming, rather than thoroughly reading, company handbooks. Therefore, if overtime is routine in your business, personally reiterate to your employees the company’s position on unauthorized overtime. Consider, for example, sending your employees an e-mail explaining the issue. Additionally, post the policy in conspicuous areas throughout the worksite, including near timeclocks.
Taking disciplinary action against unauthorized overtime
Because you cannot guarantee that employees will adhere to the written overtime policy, you must be prepared to discipline employees who violate this policy. Doing so will send a strong message to the offending employee, as well as would-be offenders, that unauthorized overtime comes with consequences.
Disciplinary actions for unauthorized overtime should be stated in your written policy on unauthorized overtime. Progressive disciplinary actions may consist of written warnings, suspension without pay, and then termination. Depending on the circumstance, immediate termination may be warranted in cases of, for example, if you discover that an employee has been intently and regularly incurring excessive overtime without authorization.
Employers are liable for paying unauthorized overtime, no matter the reason it was worked. To avoid legal liability, it’s crucial that you not only establish a written policy but also enforce it in a consistent manner. As the FLSA states, “management has the power to enforce the rule and must make every effort to do so.” Managers and supervisors, therefore, should receive the necessary training explaining how to appropriately enforce the overtime policy.