Employers - Watch that overtime!

In the current economic climate, many employers have adopted restrictive policies against an employee working overtime. But if an employer fails to actively enforce its "no unauthorized overtime" policy, the employer would still be obligated to pay overtime to any non-exempt employee who works more than 40 hours in a week.

Under the Fair Labor Standards Act (FLSA), if an employee works more than 40 hours in one week, the employer must pay that employee one-and-a-half times the employee's normal hourly rate for all time worked in excess of 40 hours. There are several types of employees who are exempt from this provision of the FLSA, such as executives, administrative support personnel, and professionals. The United States Department of Labor has issued regulations that define which employees are exempt.

Some employers have adopted strict policies against overtime work, requiring all overtime work to be pre-approved. But adopting a policy will not prevent an employer from being required to pay overtime to an employee who worked unauthorized overtime. The employer must also take steps to enforce the policy.

According to the Department of Labor regulations, unrequested work that is permitted is considered work time for which an employee must be compensated. If the unrequested work means the employee worked more than 40 hours in a week, the employee must be paid for those extra hours at the overtime rate.

The Department of Labor places the onus upon employers to exercise control to see that unwanted work is not performed. The regulations state that the employer has the power to enforce its rule against unapproved overtime and must make every effort to do so. If an employee continues to work after the end of a shift to correct the employee's own mistakes or to complete a project and the employer knows or has reason to believe that the employee is continuing to work, the work performed after the end of the shift is still work time and counts against the 40-hour workweek.

The Labor Department regulations do not permit an employer to sit back and accept the benefits of an employee's work without compensating that employee. To prevent unwanted overtime work, an employer must be vigilant. Because of the variety of settings in which employees now perform their work (i.e., the employer's office, at home, at a client's office, etc.), an employer should consult with an employment attorney to discuss ways by which an employer may enforce its policy against unauthorized overtime.