FLSA Mythbuster: Workers Usually Must be Paid For “Unauthorized” Overtime

Each quarter, our FLSA Mythbuster (identity and whereabouts still unknown) visits Corporate America’s Land of Make-Believe to uncover common workplace rules that violate the FLSA. Today’s column emanates from Hazleton, Pennsylvania, where The Boss has instructed his low wage employees that working beyond the scheduled 40 hour workweek generally is not permitted and that no one will be paid for “unauthorized” overtime. Of course, The Boss almost never “authorizes” overtime, even though (i) the employees cannot possibly complete their assigned work within a 40 hour workweek and (ii) everyone, including The Boss and his middle managers, knows that the employees routinely work in excess of 40 hours.

The Boss is violating the FLSA. Department of Labor regulations clearly require that:

Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.

29 CFR 785.11. Moreover, under DOL regulations, The Boss – not the employee – is responsible for ensuring that “unauthorized” work is not tolerated. In, particular:

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.

29 CFR 785.113. Put differently – and as recognized by several federal courts – overtime pay is due whenever The Boss has either “actual or constructive knowledge” of the overtime work. See Barvinchak v. Indiana Regional Medical Center, 2007 U.S. Dist. LEXIS 72805, * (W.D. Pa. Sept. 28, 2007). Moreover, The Boss’s knowledge “is measured in accordance with his duty to inquire into the conditions prevailing in his business.” Reyna v. Conagra Foods, Inc., 2006 U.S. Dist. LEXIS 89690, *13 (M.D. Ga. Dec. 11, 2006) (quoting Reich v. Dep’t of Conservation & Natural Resources, 28 F.3d 1076, 1082 (11th Cir. 1994)).

In sum, ignorance should not be bliss for greedy employers who implement “unauthorized overtime” rules in violation of the FLSA.

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