And, somehow, I need to explain to IT how searching Google Images for “sex talk” serves a business purpose. Wait! I’ll just tell ’em it’s all for the readers. Now, if only one of you would back me up.
But, I digress.
Over the past week, a bunch of us employer lawyer bloggers were railing about a recent Ninth Circuit decision in which the appellate court concluded that outside counsel could be held liable on a retaliation claim under the Fair Labor Standards Act. For example, I whined here.
That seems controversial. Less controversial is the general precept that the FLSA requires that non-exempt employees be paid overtime when working more than 40 hours in a week. Also, a non-exempt employee should be paid minimum wage.
Even a sex talk worker, according to a recent complaint filed in a California federal court, which just happens to be part of the Ninth Circuit:
Through a pattern of intentional manipulation and exploitation, Plaintiff and other sex talk workers are often paid as little as $4.20 per hour, a sum well below the national minimum wage. Defendant tells workers they can earn more but as soon as a worker reaches certain call thresholds needed to earn more, Tele Pay manipulates the compensation process to insure that their workers remain underpaid. While the Defendant can earn as much as $300.00 per hour based on a worker’s labor, Plaintiff and others earn below the minimum wage.
The plaintiffs in this case claim that their employer failed to pay them both minimum wage and overtime.
Now I don’t expect this “sex talk worker” claim to completely resonate in your workplace. However, there is one claim that should give you pause to ensure that you don’t end up on this blog. That is, the plaintiffs in the “sex talk worker” case claim that they were not compensated for work performed off the clock.
Off the clock work may not be permitted in your workplace. However, when your employees perform work off the clock, especially when that extra work creates overtime opportunities, we’re talking about compensable time. In other words, when your employees work overtime — even without your permission — you owe them overtime.
That said, and here’s the takeaway. It’s a question I’m often asked, “Do I have to pay overtime for unauthorized work my employees perform off the clock?”
Yes! But, even though you have to pay an employee for unapproved time worked, you can discipline the employee for working hours (overtime) without permission.
Even your “sex talk workers”.