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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