by Carrie Mason-Draffen (carrie.mason-draffen@newsday.com)
DEAR CARRIE: I read with great interest your recent column that talked about the “suffer-to-work” concept and how hourly employees have to be paid for all hours worked, even if the extra time was unnecessary and unapproved. The idea doesn’t seem fair. What if your company handbook states that management has to approve extra hours ahead of time, yet an employee works overtime without that approval? And when those unapproved hours result in overtime pay because the employee winds up working more than 40 hours a week, it can be detrimental to a small business. If the work isn’t time sensitive and can be stopped at 4 p.m. and picked up the next day, it seems like the employee is calling the shots on extra hours. Are there any exceptions to this labor law?
—Suffering Employer
DEAR SUFFERING: Great question. For an answer, I turned to a lawyer who represents employers.
If an employer does not want an employee to work beyond normal working hours, the employer must take steps to prevent the employee from working, said Christine Malafi, a partner at Campolo, Middleton & McCormick in Ronkonkoma.
But if the hourly employee works, the employer has to pay, she said.
“This remains true even when the employer has not requested the overtime, or where the employee fails to report the overtime immediately,” she said.
“To establish an employer’s liability under the Fair Labor Standards Act for unpaid overtime, all that need be shown is an employee’s email, text, etc. related to employment during his or her off hours,” Malafi said.
What can you do to avoid the unauthorized work?
“To protect against this, employers should have written, clear policies outlining overtime rules and should not provide employees who are not authorized to work after hours with access to work emails, etc., from outside the office,” she said.
Read it on the Newsday website.