Some employers have a policy or practice of not allowing employees to record overtime hours on their timesheet or timecard. These types of policies are often contained in the employer's employee handbook or personnel manual, and the policy may indicate that an employee is subject to discipline for working "unauthorized" overtime. But what if your workload is so heavy that you have to work overtime to complete your work? Or what if supervisors do not enforce the "no overtime" policy, and instead just turn a blind eye when employees are working overtime in supposed violation of company policy?
For non-exempt employees (i.e., employees who would be entitled to overtime pay if they work overtime), the law requires an employer to pay for all hours that it "suffers or permits" an employee to work. Courts have interpreted that to mean that overtime pay is due to an employee if the employer is reasonably on notice that the employee is working overtime, even if the employer did not specifically authorize the overtime. For example, an employee might be producing a volume of work too large for a 40-hour week. Or, an employee might be making phone calls, sending e-mails, or performing some other job-related tasks beyond regular work hours. In those situations, the employer may be on sufficient notice of the employee's overtime hours.
If your employer is requiring (or permitting) you to work overtime but refuses to allow you to record the overtime hours or to pay you for those hours, one way to potentially fix that problem is to complain to company management. However, as a recent St. Louis overtime case illustrates, there is a right way and a wrong way to lodge such a complaint.
In Ritchie v. St. Louis Jewish Light, a plaintiff who worked in St. Louis, Missouri was performing a single job that was previously covered by two people. As a result, she was repeatedly asked to work overtime, but her employer did not permit her to record her overtime hours. Contrary to her employer's policy and instructions, she proceeded to record her overtime hours on each occasion. When she continued this practice of recording her overtime hours after being warned not to do so, the company terminated her employment. She filed a lawsuit alleging that she was terminated for her insistence to record her overtime hours, which she argued was a violation of the Fair Labor Standards Act ("FLSA"). The federal trial court in St. Louis, Missouri dismissed the employee's case, finding that she did not engage in any statutorily protected activity. The employee appealed, arguing that her informal complaints to her employer amounted to protected activity and that being terminated for making such complaints amounted to unlawful retaliation under the FLSA.
The Eighth Circuit Court of Appeals rejected the employee's claim and held that her recording of overtime hours in opposition to her supervisor's instructions did not amount to protected activity. The FLSA's anti-retaliation provision makes it unlawful for any person to "discharge or in any other manner discriminate against any employee because any such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding..."
The Court found that by continuing to record her overtime hours contrary to her supervisor's instructions, the employee did not ever raise any complaint. Rather, she was being insubordinate. The Court characterized the employee's conduct as disobeying her supervisor by doing something she was repeatedly told not to do. The Court reached this conclusion even though the supervisor's instructions (for the employee to refrain from recording overtime hours worked) were against the law.
Employees who are required to work overtime without being able to record the time or get paid for it are in a difficult position, to say the least. If they suffer in silence, their legal rights are being violated, and they are essentially working extra hours for nothing. If they complain about it, they may get fired. But if there is any saving grace for the employee, it is that their job is protected, at least in the legal sense, if they complain in the proper way. That is, they should complain "formally" to their supervisor and/or management team, preferably in the form of a written document (letter, e-mail, etc.) specifically stating that they are being required to work "off the clock" in violation of the law.
Employees who are in this position of being forced to work off the clock should exercise caution before lodging a complaint or taking some other action that might get them fired. Such employees should contact a St. Louis overtime lawyer to determine their rights and learn the proper steps to take so that their job is legally protected.