American Staffing Association

unauthorized overtime have on her lawsuit? The answer is, none.

Employees must be paid for work “suffered or permitted” by the employer even if the employer does not specifically authorize the work. If the employer knows, should know, or has reason to believe that the employee is continuing to work, the time is considered compensable hours worked (see 29 CFR 785.11).

The fact that an employer has a policy against unauthorized overtime is immaterial. “An announcement by the employer that no overtime work will be permitted, or that overtime work will not be compensated unless authorized in advance, will not impair the employee’s right to compensation for work which he is actually suffered or permitted to perform” (see 29 CFR 778.316). According to the DOL, because employers benefit from the unauthorized work, they should be required to pay for it.

Therefore, if Newbie or someone in a management or supervisory capacity in his staffing firm knew or reasonably should have known that Smart was working overtime, then she will be able to recover. This is a fact issue that likely would be decided by a jury if her case were to go to trial. Depending on the extent of Newbie or his staff’s involvement in, and interaction with Smart and the client during the course of her assignment, a jury may well find that the staffing firm knew or should have known that she was working overtime.

Waiting for the Dough

In addition to hours worked over 40, Smart likely also will be entitled to compensation for the time she spent waiting at the client’s site to begin work.

Whether waiting time is hours worked
depends upon the particular facts and cir-
cumstances. If an employee is made or
“engaged to wait” by the employer, the
time spent waiting will be compensable. If
the employee is voluntarily “waiting to be
engaged,” such time is not compensable.
According to the DOL, an administrative
assistant who reads a book while waiting
for dictation, or a firefighter who plays
checkers while waiting for an alarm, is
working during such periods of inactivity.
These employees have been “engaged to
wait” and thus are entitled to be compen-
sated for the time spent waiting.

What’s the Damage?

Smart may file a private suit for the previous two years of back pay (three years in the case of a willful violation) and an equal amount as liquidated damages, plus attorney’s fees, punitive damages (again if the violation is willful), and court costs.

Smart may allege that the wage and hour violations were willful, since she allegedly was pressured to not record all of the time she worked. A judge or jury reasonably could agree, inferring that her firm purposefully pressured her so as to avoid having to pay overtime.

In addition to direct violation of the FLSA’s wage and hour requirements, Smart also may successfully allege that she was subjected to unlawful retaliation by virtue of being fired after she complained about not being paid. Many courts extend retaliation protection to informal complaints if they involve FLSA wage and hour issues.

Alternatively, the U.S. Department of Justice could initiate criminal prosecution for willful violations, which carry fines of up to $10,000 as well as imprisonment.

Joint Employee, Joint Liability

DOL regulations expressly impose joint employment obligations in speci-

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