Some HR policies are absolute and universal. One of these absolute and universal HR policies is simple, common knowledge: every company or organization in the United States that employs nonexempt workers must not direct, require or encourage these employees to work off the clock. This applies universally to all organizations, from Fortune 500 companies to small businesses and limited liability companies with only a handful of employees. Yet even though this law is common knowledge among the general public, the Society of Human Resource Management (SHRM) still receives weekly reports of companies large and small being accused of time clock violations. What can you do to prevent this from happening in your company?
To begin, your company must establish a basic, zero-tolerance policy if one does not presently exist. Supervisors should immediately be trained that they cannot – under any circumstances – “require, encourage, or even suggest that nonexempt employees work off the clock.” It is important to establish from the beginning the strict nature of this policy: any supervisor who violates it is subject to discipline up to and including discharge. SHRM notes that it is also important to include guidance on the language supervisors use when addressing nonexempt employees. Statements such as “we cannot pay for any overtime” may be interpreted by an employee to mean “work it, but don’t record it.” Instead, the supervisor must be clear and direct at all times, such as declaring, “No one is permitted to work any overtime.” Strict enforcement is not just a proactive measure; if it is discovered at a later date that a supervisor is in violation of the policy, it will be easier to prove that any violations were solely the actions of this “rogue supervisor” and not tolerated as part of an established, permissive company culture.
Next, it is important to train your supervisors to understand that all off the clock work reported by employees should then, in turn, be reported to HR professionals; this policy should be enforced even if the work in question was solely done at the discretion of the employee with no direction or encouragement by the supervisor. If an employer has “actual or constructive knowledge” of this work and it is ignored, the employer can be held responsible for condoning it. HR must consult with the employee and establish what hours were worked and the employee must be paid for this time, even if there is cause for disciplining the employee as well.
Your company must also establish an “open door” policy for reporting time worked off the clock. If an employee works before clocking in at the beginning of their shift or after clocking out at the end, they should be encouraged to immediately report this off the clock work to their supervisor. The supervisor should then override and correct the start and stop times logged in the system. Making these immediate corrections will ensure that all time is properly logged, the employee is fully paid for their work and HR is not required to follow up at a later date.
Finally, if you have employees that work off-site, it may be important to maintain strict enforcement through more technical means. While it may appear that a nonexempt employee is “dedicated” by logging in to company systems and answering email at all hours, this employee could still be working off the clock. One solution is to establish restrictions on when a nonexempt employee can access a company system. Alternatively, it may be easier to simply restrict these employees from accessing company systems remotely and/or using company-issued devices such as smartphones and laptops. If it is vital that a nonexempt employee work remotely, establish strict procedures for reporting all time worked and ensure that the employee is compensated for all hours worked.