Working OT

GLC

We have an hourly EE whose position has been cut to PT eff. next month. I had a conversation with her today about this move and now she informs me that she has worked many hours over the last few years and did not get paid for the time. She said many years ago she was informed by our payroll clerk that even if she worked 40 hours, she could only be paid 37.5 hours (what we normally work in a week). I told her that was not true, that she is to be paid for all time work.

I spoke with her supervisor, and she said she has told this EE on many occasions to flex her time if she has a long workday on a Monday, a shorter day on Tuesday, etc. so that it equals 37.5 hours. The supervisor said she has sent memos to this EE regarding this issue. The supervisor also told the EE that if she chooses to come in 45 minutes before start time, she will not be paid until her officical start time.

The EE acknowledged to me that she knew she had not flexed her time for the week many times like she was suppose to, often times because she could not leave due to her job (medical assistant). She said many times the doctor would need her to stay late. She never reported this to her supervisor or HR. Isn't it true that we would NOT need to pay her if we have in writing that she would not be paid if she chooses to come in much earlier than her shift starts? I have also read that an employer has to pay an EE if they knew the EE worked OT and allowed it. Would we still need to pay her if we sent memos to her to flex her time and she did not? She will say she could not leave right when her shift ends because of the job. Her supervisor, on the other hand, will say she could have left but chose to stay late.

FunHRBanker

It is my understanding that you must pay the employee for all time worked. Working when told she should not be (coming in early or staying late) is something that should've been dealt with using your discipline policy. If you don't have time card records of her work, I believe the courts will generally side with the employee (agreeing to pretty much whatever they say they worked). Yes, she disobeyed your requests for her to use flex time, but you (and her supervisor) are plainly aware that she was working.

NaeNae55

Employees get paid for all time worked period. Not following rules and procedures is an area for discipline, not pay.

Good luck!

Nae

gingerflwrs

I agree with both. You and her supervisor were responsible for ensuring she worked her required hours. If she did not, she should have been disciplined. If you did not do that, it is your problem and she is due for all time worked. You sound like you have quite a problem on your hands. I would say pay her what she believes she is due (unless you can track the exact times) and cut your losses. You don't want the DOL making a visit to see who else was not paid their OT.

Good Luck.

NeedCoffee

As they say, "Where there's smoke, there's fire." You may want to start a review of similarly situated employees to make sure this same thing isn't happening to them.

It may be a good time for you to hold a refresher course on time reporting, flex-time and scheduling! Its amazing what employees forget over time.

Good luck - I hope you avoid something ugly here!

SMace

Yikes. I would try to remedy this. If all this is true all she has to do is make a trip to the DOL Wage and Hour office. If it hasn't been tracked, they'll ask her to estimate and there will be little you can do unless you can prove otherwise. The DOL will put your ass in a sling over this. If I were you I would contact a competent attorney for damage control.

davids

I agree with others that you are liable to pay for the extra hours worked. However, I would at least have the employee provide, as best she can recall, the dates and hours worked; and then try to confirm them with the doctor whom she says required her to stay. You may find some inconsitencies (such as the employee or doctor was on vacation on a day she says she worked overtime) to limit your liability. If you happen to find substantial inconsistencies, you may be able to defend a wage & hour claim pn all of the hours.