A woman who was terminated after she was caught working during her lunch period has won her claim for unemployment. According to the employer, the employee had been warned several times in the past about working during her breaks. The employer also stated she was not terminated for working but for her behavior after she was confronted about the unauthorized work. This case raises a nice thorny set of issues about “off-clock work.”
The problem. It helps to recall that the Fair Labor Standards Act (FLSA) was enacted in the 1930’s, when the work force consisted of men (as in, “males”) going to heavy, dirty factories, doing heavy, dirty labor, punching out at the end of the day, and going home to simple-but-delicious dinners cooked by their loving wives, and surrounded by their obedient children.
As a result, the FLSA still works pretty well in what manufacturing we have left in this country but less so in the Buck Rogers world of the salaried non-exempt employee, who is equally likely to be female and who may place more value on a flexible schedule and be more inclined to “work straight through” so she can leave early and get little Addison and Liam picked up before the day care center closes. Not to mention that we now have these devices called “cell phones” and “home computers,” which greatly heighten the risk that some “off-clock work” will be performed on any given day. And not to mention that the supervisors of these employees are FLSA-exempt and can work whenever they feel like it with no problem . . . which makes them more inclined to think nothing of their direct reports’ doing likewise. Not so!
My own opinion is that salaried, non-exempt employees should be able to make their own schedules and be flexible if the job allows it. But nobody consulted me when they enacted the FLSA. (I’m sure they wanted to, but my parents were only preschoolers at the time and hadn’t met yet.) So, according to the “Stone Age” law, employers are faced with two unattractive alternatives: (1) keep employees happy by letting them do their thing as long as the work gets done, but risk liability for off-clock work; or (2) obey the law by requiring employees to stick to their required shifts and take all required breaks on schedule, no ifs, ands, or buts, which will make the employees very unhappy, not to mention insulted because they identify with the Buck Rogers world.
What do you do if your employee continues to disobey your instructions to avoid off-clock work?
Do treat it as a disciplinary issue. First, make sure your expectations have been clearly communicated and that you are not “winking” at off-clock work. Realize that most employees want to do a good job and please their bosses, so make sure you aren’t giving off vibes that make your employees think off-clock work is expected, no matter what you may say.
If you have not communicated your expectations clearly before, do so now. If you used to “suffer” off-clock work and have decided to turn over a new leaf, make sure your employees know that the rules have changed and that you sincerely mean it. Once you are comfortable that they know (and believe) the expectations, start with an oral counseling the first time you catch them working off the clock. If it happens again, up it to a written warning. Continue with the progressive steps, and if you have to eventually terminate, then terminate. Even if you don’t win your unemployment case, that’s not the end of the world. Much better to lose the unemployment “battle,” but prevent or win a collective or class action “war” under the FLSA or state wage-hour law.
Reminder: You should not dock an employee’s pay when the employee worked without authorization. This would be a clear violation of California law.
Bonus word of caution: In case the preceding post has not made this clear, “salaried” does not equal “exempt.” We have to constantly remind clients that having someone as salaried, does not mean they do not have to be paid overtime. The employee still has to meet the requirements for being an exempt person or you have to pay the overtime.