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December 5, 2011

FLSA Question of the Week – Do I Need to Pay Non-Exempt Employees if they Work Unauthorized Overtime?

By now, we all have seen the headlines of increased staff in the Department of Labor’s Wage & Hour Division.  This is to be interpreted as ramped up scrutiny and audits in the classification of employees and how they are paid.  Therefore, I’m continuing my blog this week with a question that is asked frequently.

“Do I have to pay overtime to those over achiever non-exempt employees that come to work early or stay a few minutes late?  After all, I’m not asking them to put in their time. They are doing it on their own accord and they aren’t asking for overtime pay either, so I’m assuming it’s just extra time they are giving the company.”

Bottom line is, employers must pay for hours worked, including overtime hours.  Even if your company policy states all overtime hours need to be preapproved, these unapproved overtime hours still must be paid.  A policy alone is not enough.  

Management has a duty to ensure that work is not performed if it doesn’t want it to be performed. The problem should be addressed through corrective action, not pay deductions.  If an employee is “allowed” to work, the employee must be paid, even if your policy says otherwise.  This isn’t the Army; you can’t volunteer to work extra time. Again, it’s a disciplinary issue, not a pay issue.

If this has happened to you, please share what you did and how it was handled.  Also, please send me your FLSA questions as I will be focusing on some of the more common issues in the upcoming weeks.

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