Thu, 08/27/2020
It’s 5pm, do you know where your remote employees are?
As the Department of Labor has recently highlighted, that is a very important question for determining when employees are owed overtime.
Specifically, on August 24, 2020, the Department of Labor released a new Field Assistance Bulletin, setting out additional guidance for determining when overtime work must be compensated.
As the Department of Labor explains in the new guidance, “[a]n employer is required to pay its employees for all hours worked, including work not requested but suffered or permitted, including work performed at home.” An employer bears the burden to prevent work from being performed if it is not desired, and “[t]he mere promulgation of a rule against such work is not enough.” Also, even if an employer establishes a reasonable overtime reporting procedure and an employee “fails to report” overtime work, it may still be compensable: “[i]f the employer knows or has reason to believe that the work is being performed, he [or she] must count the time as hours worked.” (emphasis added).
The Department of Labor concludes its new guidance by quoting from a controversial—and often misunderstood—case from the Sixth Circuit, White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 876 (6th Cir. 2012). In that case, the Sixth Circuit wrote “When the employee fails to follow reasonable time reporting procedures [he or] she prevents the employer from knowing its obligation to compensate the employee.” Id.
However, as the Sixth Circuit later explained in Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382, 388 (6th Cir. 2016), the fact that employees have not reported their overtime hours does not excuse an employer from paying its employees for work the employer otherwise knows or should have known took place. In addition to having actual knowledge of the overtime work, evidence that the employer prevented or discouraged overtime reporting can also be enough to hold an employer liable for unreported overtime work.
This is an issue our law firm has successfully litigated numerous times to recover damages for employees’ unpaid work time. See, e.g., Foster v. City of New York, 2017 U.S. Dist. LEXIS 227758, at *123 (S.D.N.Y. Sep. 30, 2017); Perry et al. v. City of New York, No. 13-cv-1015 (S.D.N.Y.) (resulting in a jury award of over $7,000,000 after City’s summary judgment argument that employees’ failure to report overtime work shielded it from liability)
If an employer knows or should know that an employee is working—whether the employee reports that time or not—the FLSA requires overtime payment. If you think your employer has violated the Fair Labor Standards act, please contact MSE at info@mselaborlaw.com.
