One question I get asked with some regularity is whether an employer must pay an employee for time spent working without permission, even if the employee has been told not to do so. It may be an employee who works through a lunch period which is supposed to be unpaid or an employee who begins work too early or leaves too late. It may also include employees who take work home and “work off the clock” to get caught up. The short answer to the question of whether this time should be paid, whether fair or unfair, is almost always, “yes.”
The follow up question I’m asked after employers have accepted that they must pay employees for unapproved time worked is what can they do about it. The basic answer is the employer should implement and enforce a time and attendance policy that contains a provision addressing unapproved work time. Although implementation of a time and attendance policy does not absolve an employer of its obligation to pay employees for unapproved hours worked, it can be used to discourage employees from working when not authorized while giving employers a basis for the disciplining employees when they do.
Hours worked must be paid whether approved or not
Under federal and state wage and hour laws, employers are required to pay employees for all hours worked. These laws do not provide exceptions to this rule for hours worked that are unapproved. In fact, federal Fair Labor Standards Act (FLSA) regulations specifically state that:
“Work not requested but suffered or permitted is work time,” which includes time when “the employer knows or has reason to believe [the employee] is continuing to work . . . .”
29 CFR 785.11. Thus, if an employer knows or has reason to believe an employee is working, even if the time is unauthorized, the employer must pay the employee for the time worked and, maybe more importantly, include the unapproved hours worked in its calculation of overtime hours.
Time and attendance policies
Good time and attendance policies do two things:
- First, they set forth the employer’s expectations regarding the hours employees are expected to work and the hours they are expected not to work. Thus, good time and attendance policies will contain provisions addressing tardiness, absences, and leave as well as provisions informing employees that they may only work time that has been approved by the appropriate supervisor or manager.
- Second, they set forth the discipline system the employer will apply to employees who violate the time and attendance policy. The discipline system should be consistent with any other discipline policies the employer maintains to avoid confusion and contradiction.
Different policies for different classifications of employees
Employers who have diverse workforces may need to implement different time and attendance policies for different classifications of employees, which is not only appropriate, but recommended if schedules and work expectations differ significantly between employee groups. For example, I have a friend who runs a pest control business. As part of his business, he has an administrative staff that works exclusively in the office and generally work 8:00 a.m. to 5:00 p.m., Monday through Friday. In additional to the administrative staff, he has a group of technicians who apply pest control treatments at customer’s homes and businesses. These technician spend almost all of their work time away from the office, frequently work overtime, and have hours that vary each day depending on the number of service calls they have scheduled. Because of the significant differences in the schedules, work hours, and work locations for the two employee groups, my friend maintains separate time and attendance policies for each.
Enforcing time and attendance policies is necessary
I would like to reinforce one point about time and attendance policies and unauthorized work time. Even if an employer has a time and attendance policy that prohibits an employee from working unapproved time, the employer is still obligated to pay the employee for the unauthorized hours worked. As stated by federal regulation:“In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.”
Thus, an employer’s recourse when an employee has worked unauthorized hours is not to refuse to pay them for that time, but instead to take the disciplinary action against the employee consistent with the established time and attendance policy.
Federal and state wage and hour laws typically require employers to pay employees for unapproved hours worked. To address issues related to employees working unapproved time, employers are encourage to implement and enforce time and attendance policies that 1) specifically state employees may only work hours that are previously approved and 2) explicitly state the discipline that will result if unapproved time is worked. By implementing and enforcing such a policy, employers can ensure employers are aware of the work hour expectations and the potential consequences if they fail to meet those expectations.