Articles Posted in Overtime


Last Friday, I had the honor and privilege of presenting at the Philadelphia Association of Paralegals’ Education Conference. The class was essentially a primer on the basics of employment law, during which I emphasized both the types of claims on which paralegals may assist clients, and the employment-law issues that the audience may encounter for themselvesat work.

We explored discrimination, disability accommodations, family and medical leave. And then we got to the Fair Labor Standards Act.

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Once is happenstance. Twice is coincidence. Three times is enemy action.”

(I’m pretty sure that was from Ferris Bueller)

Yesterday, in the Wall Street Journal, I read Lauren Weber’s article “Can You Sue the Boss for Making You Answer Late-Night Email?” And the answer is yes, provided that you are a non-exempt employee under the Fair Labor Standards Act and the time you spend answering that email is more than a few minutes a week.  It’s no different than when an employee checks company email at work. Work is work. Employees get paid to work. Continue reading

I’ve gotta hand it to the company in this recent federal appellate court opinion. The company almost — soooooo close — avoided several claims for unpaid overtime.

Let me set the stage for you. So, there I was wearing nothing but feathers and a coy smile. Back in 2011, the U.S. Department of Labor began investigating a complaint that a marketing company had misclassified some employees and failed to pay overtime. During the DOL investigation, the company sent the employees checks for back wages. Each check bore the following note in fine print:

“full payment from Actinlink [sic] or [sic] wages earned, including minimum wage and overtime, up to the date of the check.”

A bunch of employees deposited these checks. So, the marketing company claimed that, voila, those employees had agreed to waive their right to any additional back pay. Continue reading

More specifically, as posed in this recent federal court decision, “when an employer requires an employee to attend alcohol counseling and treatment sessions as a condition of keeping her job, must the employer compensate the employee for the time she spends in counseling and treatment?”

The three plaintiffs, NYPD police offers, identified three aspect of counseling that they claim they were required to undertake: (1) inpatient counseling at a residential treatment facility (with respect to one plaintiff); (2) outpatient counseling during regularly-scheduled work hours; and (3) outpatient counseling after regularly scheduled work hours. All three were paid their regular wage while in counseling. However, none of these employees received overtime.

More after the jump…

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When you’re part of the bloggerati, just one half-step below the illuminati, well, let’s just say membership has its privileges. AMEX taupe card, rinkside seats to the local roller derby, earlybird specials, the world is your oyster.

And, at work, the staff sees me coming and runs the other way throngs to my office. Indeed, it’s gotten so bad, that we had to install security machines to control ingress and egress. While my firm can’t wait for me to jump ship loves the attention that my blog brings — remember you can vote for my blog in the ABA Blawg 100 — the folks who sign my mega-paycheck expressed concern that it would also have to compensate our non-exempt employees for the spent clearing security.

Thankfully, yesterday, the Supreme Court, in this opinion, unanimously ruled that the time these folks spend clearing security is not compensable under the Fair Labor Standards Act. That’s because the time our staff spends waiting in line to clear security is neither indispensable nor integral to their principal activities in the office. They get paid to do legal work; not wait in line. And, absent the security, these folks could still do their jobs. And, even though my firm requires our awesome staff to clear security because of my blogging greatness and related fame and notoriety, the Portal-to-Portal Act exempts employers from FLSA liability for this this preliminary and postliminary time.

Although in reality, our firm had no direct stake in yesterday’s SCOTUS ruling, and I made up everything in this post, except for the SCOTUS opinion, hopefully, you’ve learned a thing or two about the FLSA and compensable time.

Today’s post is brought to you by the letters S, E, and O.

With a tip of the hat to whomever posted a link to this story on Twitter, it got me reading about this app that companies can install on employees’ smartphones and tablets that would preclude them from accessing work-related email on those devices.

Why would you want to do that?

For starters, app maker touts the feature as increasing productivity, reducing stress, and creating a more stark line between work and personal time.

But, this is an employment-law blog. And, little known fact: When Ice Cube wrote Check Yo Self in 1992, he created a prescient radio remix, addressing the Fair Labor Standards Act implications of employees using smartphones for work email.

Right hand to God.

You see, the FLSA (and, by extension, parallel state laws) requires that employers pay minimum wage to all employees and overtime to non-exempt employees, like #AlexFromTarget, for all hours over 40 worked in a particular workweek. And Cube knew that when a non-exempt employee is accessing work-related email on a handheld device either on or off the clock, unless de minimis, that is still compensable time.

(Just kidding on the Ice Cube thing. Even #AlexFromTarget knows that).

Even without this app, if you won’t want non-exempt employees using work email “off the clock,” have a rule in your handbook. You can strictly forbid non-exempt employees from accessing work-related emails “off the clock.” If employees ignore the rule, you still have to compensate those employees. However, you can discipline them too.