Employees Working After Hours: Is It Compensable?
FLSA work time rules can be confusing to small business owners. How to know if an employee is exempt or non-exempt, i.e. whether they qualify for overtime, is one such question. Another is how to calculate the overtime once you’ve determined that an employee is owed it. And yet another is whether you need to pay employees for the time they wait, travel, and are on-call.
With all that to wade through, it’s scary to think there is more. But there is! You’ve got to contend with double time pay, comp time, and many other specifics. Peruse our Department of Labor category to learn more.
Another issue of confusion is whether employers have to pay employees who work from home without the employer’s knowledge or permission. Does an employer have to pay employees when they do extra work outside of regular business hours? The answer is, it all depends on whether the employer knew they were working.
The FLSA defines employ as, “to suffer, let, or permit to work.” And the Supreme Court added that hours worked include time spent “in mental exertion that is controlled or required by the employers.”
These definitions include employees who do any work with the employer’s knowledge. So, whether it was unscheduled or even unauthorized, the work must be paid for if the employer knew it was happening. This goes for work performed at the job site or away.
If the employer does not wish for the employee to work, the employer must enforce the schedule. That is the duty of the employer. Essentially, the employer cannot get away with saying, “It’s not my fault this employee likes to work so much. I never said I was going to pay her.” And then reap the uncompensated benefits. If the employer doesn’t intend to pay, the employee must be made to stop working.
Avoid Off-the-Clock Work
To avoid litigation or an unfriendly view by other employees, employers should post a policy stating that the company does not allow employees to work off the clock and/or away from the office. Employees should be aware that any violations will lead to disciplinary action. Of course, the best way to solve this problem is by requiring employees to clock in when they work. With an online time tracking system, employees can work from home at night as long as they clock in first!