How Managers Can Curb Invisible Off-The-Clock Work Claims

Ver la versión en español aquí.

We published a shorter version on this topic in a previous blog post. You can also find this article published on Law360.com.

In the last few months, there has been a rash of federal court lawsuits across the country in which nonexempt employees have alleged that their employers have failed to pay them and their co-workers for off-the-clock work. These employees have sought overtime pay for work performed in addition to their weekly 40 hours of on-the-clock work. Recent court cases that have alleged employer knowledge of off-the-clock work include companies such as Michaels Stores Inc., Peloton Interactive Inc., Wells Fargo Bank NA, BOK Financial Corp, NCR Corp. and Liberty Mutual Group Inc., just to name a few.[1]

Employers are often flabbergasted to discover their nonexempt employees have been working very early mornings, during meal breaks, late nights or weekends off-the-clock. Apparently, no one in management asked or knew that off-the-clock work had occurred.

Here are a few scenarios:

Employees were told not to work more than 40 hours per week, but also understood they had to complete all their work by the end of their shift;
Employees clocked out for an extended meal period, but continued to read emails, take phone calls, send texts or work while on break;
Incompetent employees were not able to complete their tasks in 40 hours but did not want anyone to know, so they worked extra hours off the clock before others arrived at work or after everyone was gone for the day;
Without telling anyone, employees worked weekends and/or nights at home; or
Employees loved their employer and thought they were helping to make the company better by donating extra hours to get the job done.

Changes Coming to Florida’s E-Verify/I-9 Law

By Glenn Rissman on April 3, 2023 Posted in Hiring/Termination, Immigration, Legislation & Regulations

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If you attended our webinar “Fakes, Frauds and Factual Documents – Do You Really Know How to Fill Out an I-9 Form?” on March 21 or read my colleague, Marco Paredes’ Rotunda Report, then you may recall that the Florida Legislature is considering bills that would amend Section 448.095 of the Florida Statutes, Florida’s state law requiring E-Verify or I-9 compliance. Section 448.095 took effect on January 1, 2021 and requires every public employer, contractor, and subcontractor to register with and use E-Verify to verify the work authorization of all newly hired employees. The statute also requires private employers to verify the employment authorization of any newly hired employee either by: (1) using the E-Verify system or (2) requiring the person to provide the same documentation required by the Form I-9 process. The statute requires employers who do not use E-Verify to copy and retain the documentation the employee submits to establish his or her work authorization and identity. The employer must retain a copy of the documentation for at least three years after the person’s initial date of employment.

Look to Your Left…It’s the New NLRB

By Rene Ruiz on March 28, 2023 Posted in Employee Handbooks & Policies, Labor Law, Legislation & Regulations

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For several years now, the National Labor Relations Board (“NLRB”) has been disavowing any pretension that it is an “intermediary” between labor and management. Instead, the new NLRB has firmly tipped the scales in favor of organized labor. This has clearly impacted all employers, as the NLRB has increasingly exerted its power over unionized and non-unionized employers alike.

This past week, NLRB General Counsel Jennifer Abruzzo issued a memorandum to all Regional Directors outlining her “prosecutorial priorities.” That memo identifies numerous Board precedents that she feels merit “Board reconsideration” because they are either “contrary to Congressional mandate” or “improperly compromise the statutory rights of workers.” If you run a business, you need to take notice because it is clear that the Board’s new “priorities” do not include your best interests.

Must an employee making more than $200k still be paid overtime? Definitely, maybe.

By Robert Turk and Ingrid Ponce on March 1, 2023 Posted in Legislation & Regulations, Wage & Hour/Employee Classification

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It is hard to imagine an employee earning over $200,000 per year and still being eligible for overtime pay. Yet, this is exactly what the U.S. Supreme Court held when it decided Helix Energy Solutions Group, Inc. v. Hewitt, last week.

Michael Hewitt worked for Helix Energy (and a sister company) as an offshore oil rig Toolpusher, supervising a dozen or so employees. He was paid a daily rate for each day he worked. During the course of his employment, Hewitt’s pay ranged from $963 to $1,341 per day. Hewitt worked long hours but received no extra pay when he worked more than 40 hours each week. So he sued for overtime pay.

The Overwhelmed Employee and the Clueless Employer–A Tale of the Hidden Costs of Off-the-Clock Work

By Robert Turk and Stearns Weaver Miller on February 21, 2023 Posted in Employee & Management Counseling, Employee Benefits & Compensation, Legislation & Regulations, Wage & Hour/Employee Classification

Ver la versión en español aquí.

In the last few months, a number of employers have reported being flabbergasted to discover non-exempt employees working very early mornings, late nights or weekends “off the clock” (after working 40 hours on-the-clock). Apparently, no one in management asked or knew that off-the-clock work had occurred. How does this happen?

Here are a few scenarios:

Employees were told not to work more than 40 hours/week but also understood they had to complete all their work by the end of their shift (or else!);
Incompetent employees were not able to complete their tasks in 40 hours but did not want anyone to know, so they worked extra hours off-the-clock;
Without telling anyone, employees worked weekends and/or nights at home; or
Employees loved their employer and thought they were helping to make the company better by “donating” extra hours to get the job done

Bet You Didn’t Know What I Learned This Month!

By Robert Turk on January 30, 2023 Posted in Disability & Leave, Hiring/Termination, Legislation & Regulations, Wage & Hour/Employee Classification

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You learn something new every day in the field of employment law. As we close out January 2023, here are five interesting things that I’ve learned this month in no particular order:

1) THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (“EEOC”) IS ON FIRE
Over the years, there have been a number of employees and employers who have been so upset with the EEOC that they wished they could set the EEOC on fire (figuratively). However, on the evening of January 5th, two culprits broke into the EEOC headquarters in Washington, D.C. overnight and set the EEOC’s office on actual fire. They were arrested onsite. No motive has been reported yet for the arson. However, the fire did a fair amount of damage. According to Bloomberg Law, in order to allow the EEOC to conduct “water remediation efforts,” they had to convert its onsite live presentation on Artificial Intelligence (“A.I.”) to a virtual presentation set for tomorrow, January 31st.

WEBINAR: Leveraging your 401(k) Plan to Increase Employee Retention

By Stearns Weaver Miller on January 26, 2023 Posted in Employee Benefits & Compensation

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Thursday, February 16th, 2023 | 12:00 PM – 1:00 PM

A 401(k) can do more than help employees save for retirement. New laws, including SECURE 2.0 have created additional ways for plans to better serve the needs of employees. Please join Shareholders Sharon Quinn Dixon and Andy McLaughlin for this webinar to discover how.

CLICK HERE TO REGISTER

Credit Information: This program is pending HRCI, SHRM & CLE credit confirmation. Once approved, credit information will be sent to all registrants.

I Took a Short Vacation and All I Got Was Changes to Federal Employment Laws

By Robert Turk on January 6, 2023 Posted in Employment Contracts & Corporate Issues, Employment Litigation, Labor Law, Wage & Hour/Employee Classification

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Earlier this week, I returned from a short vacation to find the Federal Trade Commission (FTC) took action against three companies requiring them to invalidate their noncompete agreements with employees. Then yesterday, the FTC rolled out a proposed rule which, if enacted, would turn many state laws on the enforcement of noncompetition agreements (including Florida’s) on their heads.

I also came back to read that the United States passed two new federal laws providing additional protection to pregnant and nursing employees.

My partner, Lisa Berg will provide a more detailed blog post on the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections for Nursing Mothers Act (with the totally appropriate acronym-the PUMP Act).

However, let me give you a brief overview of recent Federal Trade Commission actions.

Happy Holidays, or Is It? Steering Clear of Religious Discrimination and Other Landmines During the Holidays!

By Janet McEnery on December 16, 2022 Posted in Discrimination & Harassment, Employee Handbooks & Policies

It’s that time of year again and we are all excited to be able to attend our holidays in-person post-COVID. The holidays are wonderful, but can produce some dicey situations for your HR Department.

A couple of holiday planning suggestions to help you navigate these holiday landmines include:

Happy Holidays from Stearns Weaver Miller’s Labor & Employment Department!

By Stearns Weaver Miller on December 6, 2022 Posted in Employment Litigation, Labor Law

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Thank you for being a subscriber. Wishing you a joyous holiday season and happy, healthy year ahead.

We hope that BeLabor the Point has brought you important information throughout the year and a few smiles along the way. Speaking of smiles, click on the image below to view our Labor & Employment Law Department’s holiday card!