Question: We have a full-time, hourly employee who occasionally logs on to our network from his home computer after he’s left the office for the day. His supervisor has received emails from him after work hours but doesn’t respond to them until the next day. A few months ago, we told the employee he isn’t authorized to work outside of his regular schedule. My hunch is that this behavior hasn’t stopped, and the supervisor doesn’t want to address it. How do we get this situation under control?
Answer: An employer who knows an employee is working overtime cannot allow them to perform work without proper compensation, even if the employee doesn’t report the time. If your supervisor knows that off-the-clock work is occurring (or has occurred), then the company is deemed to know and can be held liable for not compensating the employee for those work hours. If you don’t immediately take action to stop off-the-clock work and pay for the time spent on after-hours work activities, your organization risks significant liability under wage and hour laws.
A nonexempt (overtime-eligible) employee recently won over $81,000 in damages in federal court after prevailing on his claim for unpaid wages in a similar situation. A federal district court in Texas found enough facts, including evidence of emails sent after the employee left the worksite for the day, to conclude that the employer had actual and constructive knowledge of off-the-clock work. The employee testified that he didn’t know he was entitled to be paid for work performed after he left the worksite, so he didn’t report the overtime or track it. Given the absence of accurate timekeeping records kept by the company, the court relied on the employee’s estimate of eight hours per week as a “just and reasonable inference” of actual hours worked for the purpose of calculating back wages. The judge further determined that the employer’s violation was willful, which extended the period of time covered by the employee’s claims from the usual two years to three years. The court said that it was “objectively unreasonable” for the employer to sit back and accept the benefits of voluntary work without exercising its control to stop the work or pay the employee for it (White v. Patriot Electors, LLC, WD Texas, June 2023).
Fending off this potential liability requires two actions: informing employees of your policy that they must report all time worked and requiring supervisors to enforce it. If an employee violates the policy, you can issue a written warning or other discipline, but you must pay for the time. If you have specific questions about your wage and hour policies and practices, consult with your Vigilant Law Group employment attorney.
