Given the ever-increasing reliance on digital technology, employees are more and more tethered to their smartphones – checking email during their commute, at the dinner table, and even from their beds – essentially creating a never-ending work day. A bill filed by a New York City councilman aims to curtail this trend. The bill, introduced on March 22, 2018, would prohibit employers in the city of New York from requiring employees to check and respond to work-related electronic communications outside of usual work hours.
Off-the-clock work occurs any time someone performs work while not on their regular shift no matter where the work is performed. Generally, this work is compensable if the employer knows or should have known that the employee was performing the work. Off-the-clock claims can be challenging to defeat because they require employers to essentially prove a negative to win – that the employee did not actually work the time he or she claims, or if they did, that the employer did not know or should not have known that they were performing that work.
In this post, we offer employers ten steps they can take to reduce their exposure to these claims and/or defeat them if faced with one.
The Fifth Circuit recently sided with an employer in an off-the-clock overtime case where the employee failed to comply with her employer’s overtime approval and reporting policies. For employers, this decision highlights the importance of implementing overtime authorization and reporting policies to defeat these claims.
The Eleventh Circuit Court of Appeals recently issued an opinion holding that an employer cannot assert equitable defenses based on an employee’s misconduct in under-reporting hours as a total bar to the employee’s FLSA claim where the employer was aware of the employee’s conduct.