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October 19, 2022 Did You Know?

Defending Against Claims of “Off-the-Clock” Work

By Brian Miller

Remote work requires greater faith in hourly employees’ compliance with time-reporting and overtime-authorization rules. Reduced in-person contact increases the risk of employees claiming unpaid work. Under the Fair Labor Standards Act, liability often rests on this principle: “If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” 29 C.F.R. § 785.12.

An employer may not turn a blind eye. The employer has a duty to “exercise its control and see that [unwanted] work is not performed”. 29 C.F.R. § 785.13. “The mere promulgation of a rule against such work is not enough.” Id.

Appropriate rules are, nonetheless, a good start. If an employee does not follow overtime authorization and time-reporting rules, the employer is more likely to avoid a finding of constructive knowledge of the work. See, e.g., Fairchild v. All American Check Cashing Inc., 815 F.3d 959, 964-965 (5th Cir. 2016) (affirming bench-trial judgment); Kellar v. Summit Seating Inc., 664 F.3d 169, 178 (7th Cir. 2011) (affirming summary judgment).

The ability to observe the additional work is a significant consideration. In one case, a factory employee claimed to begin work well before the 5 a.m. start of her shift. Kellar, at 177-178. The employer’s lack of constructive knowledge was supported by, among other things, the fact that the employee’s supervisors did not arrive until 7 to 8 a.m. Kellar, at 177-178. In another case, the employer had no reason to know that two employees performed administrative duties at home instead of during their daily rounds, as the employer’s rules instructed. Chambers v. Sears Roebuck & Co., 428 Fed. Appx. 400, 419-420 (5th Cir. 2011).

Some employees have claimed work-related pressure to underreport hours. But an employer is not charged with constructive knowledge of underreporting when the employer merely encourages employees to be efficient or criticizes the amount of their output. See, e.g., Chambers, at 420; Fairchild, at 965.

When an employer denies that hours were worked, automatically generated non-payroll records may support that defense. Those records are not as easily used to show constructive knowledge of unreported work. For example, a sheriff’s department was not expected to “weed through non-payroll CAD [computer-aided dispatch] records”. Hertz v. Woodbury County, 566 F.3d 775, 782 (8th Cir. 2009) (affirming judgment on jury verdict). Nor was an employer expected to check computer-usage reports. Fairchild, at 965.

The additional work may be too trivial to support a claim. An employer does not violate the FLSA when “uncertain and indefinite periods … of a few seconds or minutes duration” are not counted “due to considerations justified by industrial realities”. 29 C.F.R. §785.47. Thus, an employer may not be liable for an employee’s time spent at home to log into a scheduling system before reporting to work or on a phone call to verify that day’s first worksite. See, e.g., Chambers, at 418, 421.

When supervisors and other employees are not present as eyewitnesses, claims of unpaid work are harder to verify. Understanding the applicable legal rules and taking protective measures can greatly reduce the risk of those claims.

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By Brian Miller

Brian Miller is a partner at the Corpus Christi, Texas, office of Royston Rayzor Vickery & Williams L.L.P. and a vice-chair of TIPS’ Employment Law Committee.