The Myth of "Unauthorized" Overtime


Has something like this ever happened in your organization? You have a solid non-exempt employee working hard on a project. His supervisor is out of town and unreachable. In the supervisor's absence, to get the job done, he works a few hours of overtime. When the supervisor gets back, he asks if she will approve the extra time he has already worked. The supervisor says yes, but adds that if the employee had asked ahead of time she probably would have told him not to work overtime on this particular project. The employee responds apologetically and says that he won't put in for the overtime pay.

Your employee handbook says that overtime must be approved in advance, so end of story, right? Maybe, but maybe not.

Under the Fair Labor Standards Act, employees are entitled to pay for any time that they are "suffered or permitted" to work. In this case, the employee was given an assignment that he evidently concluded could not be completed during his regular work hours, and as a result worked additional time. Perhaps his conclusion was unreasonable, but under these circumstances it will be difficult at best to argue that the employee was not "suffered or permitted" to work the extra hours.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

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