Does off-the-clock work count as overtime?

In this edition of In the Trenches, Acme wonders if a supervisor's sleep warrants overtime.

Andy Manding, the head of Acme’s technical writing group, was working late Wednesday night revising the user manual for the Widgenator, Acme’s new widget manufacturing device. He was already behind schedule and was under the gun trying to put the finishing touches on the manual for the impending product launch. Finally, at around 9:15 P.M., he forwarded the manual to Dee Pendable, his production assistant. “Here are the final edits — I hope,” he wrote in an email to Dee. “I don’t think I’ll sleep until this manual is printed and shipped to manufacturing. We have a hard deadline of Friday. We should be OK though; at this point I just need to review the fixes after you make them and approve final layout. Then it’s off to printing.”

Never far from her all-purpose Android, Dee got Andy’s message while at home watching CSI. She knew that Andy was stressing out and figured she could knock out the fixes that night. She grabbed her laptop and got to work. Sure enough, by 11:45 that night, Dee sent the file back to Andy with the fixes he requested and headed off to sleep.

Andy peeked his head into Dee’s cubicle Thursday morning. “Thanks for turning this around so quickly,” he told her. “You didn’t have to miss Letterman, though. I still would have had plenty of time to review today. I really just wanted to get the thing off my desk.”

“It was no problem,” Dee replied. “I knew it was a rush job so I thought the sooner the better.”

On Friday afternoon, the printed manuals went out the door, and Dee submitted her timesheet, with 2.5 hours overtime recorded for Wednesday. Andy was irate. “I never told you to do the revisions that night, and I certainly didn’t approve this overtime. You need to redo your timesheet.”

Dee was stunned. “You’ve got to be kidding me. You were in full-blown panic mode. What did you expect me to do when I got your email?”

“I didn’t think you’d look at your email until the morning,” he replied.

“You can’t really think that I don’t look at my phone at night!” She grudgingly revised the timesheet and then called the state department of labor.

A labor and employment analyst says:

Acme can’t plead “unapproved overtime” to avoid liability for overtime pay. Even if an employer has an explicit policy in place that employees may not work overtime hours without their supervisor’s permission, those extra hours worked are compensable if the employer has reason to know that an employee is performing the overtime work. It doesn’t look like Acme has such a policy in place and, under the circumstances, it might not have cleared Acme of overtime liability. However, such a policy might have deterred Dee from taking it upon herself to work at home that night.

Manager training is a critical component of wage-hour compliance, and it sounds like Andy could benefit from some guidance on how to keep the company out of trouble and within the payroll budget. He should have conveyed more clearly to Dee that he did not expect the work to be done that evening. He also needs to be instructed that it’s never OK to make an employee alter her time records to shave time actually worked.

Acme may want to reconsider allowing Dee to mix business with pleasure on her mobile device. While nonexempt employees may enjoy the convenience of carrying just one cell phone, it blurs the lines between on- and off-the-clock. Dee should be required to turn off the company-issued phone at closing time, in which case she wouldn’t have received Andy’s email until the following day. Alternatively, if Acme has a “BYOD” (bring your own device) program—in which employees use their own personal devices for company purposes—it should be restricted to exempt employees only. Setting aside the overtime liability issues, does Acme really want to run the risk of Dee opening Widgenator specifications on a nonsecured device pre-launch?

Lisa Milam-Perez, J.D., Labor and Employment Analyst, Wolters Kluwer Law and Business
(773) 866-3908, lisa.milam-perez@wolterskluwer.com

Reader responses:

She should be paid overtime; the responsibility was with the supervisor. He should not have mailed the request after hours without instructions for when the review/revisions were to be performed. Implied urgency based on his mailing prompted Dee to carry out the review at home. She should not be just commended but paid overtime as well.

James Shugart

It is never right nor legal to alter the timesheet to avoid paying an employee what they have earned. If he didn't expect the revisions done before morning he should have said so since he knew that she would see his frantic comments and make the revisions as soon as she saw his comments. He should have been more explict on his expectations and when she got the work done he should have been thankful and paid the overtime while learning the lesson of conveying his expectations more clearly next time.

Tim Ryan

I can undeerstand why Andy was upset. He did not ask Dee to work on the document that evening and he did not approve overtime. However, he also needs to be grateful for a loyal employee, which is something money cannot buy. I believe Andy should have: 1) thanked Dee for the quick response, 2) apologized for the misunderstanding, 3) told her that in the future she needs to please specifically gain approval before working overtime, and 4) agree that he will be more specific about this were he to e-mail her after-hours in the future. If Andy did not have the overtime budget, then he needed to see if Dee would accept time off that work week and, if not, just accept the overtime charges. I'm assuming here that Dee is in fact a consistent, loyal, dependable worker and that this is not just another example of constant attempts to "beat the system." If Dee is an employee who is always loooking for ways to beat the system, then Andy still needs to pay the overtime but can issue a written warning, involving the Human Resources Department, that there will be disciplinary action if she were to work unapproved overtime again.

Bob Forgione

This is an example of what happens when one writes a vague e-mail. If he did not expect any work to be done that night, he should have explicitly said so. He wanted recognition from someone that HE was working late; hence, the e-mail that implied urgency ("I don't think I'll sleep") with implied work for the next day ("We should be OK, though").

Unless Dee is new to the Production Assistant position for Andy, he should know already that she might react as she did. That is why he should put explicit instructions into the post. I believe he should be grateful for having a Production Assistant who cares about doing a good job on time, and tell her so. If overtimes policies were breached, tell her that also, as gently as possible, but let the timesheet go through unaltered and pay the lady. If questions come up later, he has the responsibility to stand up for her as well. Andy should chalk this one up as a lesson learned in e-mail communications.

Phil Grimes

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