Employment Law Blog

News, trends and analysis in employment law and HR

Apr 11, 2013

CALIFORNIA: After-hours emails, texts and phone calls equal big overtime

Wage and Hour 

It's important to understand that your overtime policy doesn’t change your obligation to pay overtime if the employee works it.

A voluminous workload, combined with an employment policy forbidding employees from entering overtime on their timesheets, led to one employee filing a claim for unpaid overtime due to her off-the-clock activities. The employee was given more work than could be completed in a typical eight-hour day and, within her first few weeks of work, she was scolded for entering overtime on her timesheet. As a result, the employee claims that she had no choice but to complete work off-the-clock and believed her job would be in jeopardy if she recorded her overtime work. To make matters worse for the company, the employee routinely communicated with her supervisor through emails, texts and phone calls during hours that she didn’t report on her timesheet, which he approved by signature. The company argued that the employee willfully failed to report her time accurately and failed to notify the company of underpayment, thereby preventing it from complying with wage and hour laws. Unfortunately, the court was not sympathetic with the employer’s viewpoint and will allow the employee to present her evidence to a jury, including a claim for 28 hours of overtime per week during a two-year period (Butler v. Homeservices Lending LLC, SD Cal, March 2013).

Tips: Many employers have a rule against working overtime unless it has been pre-approved, but it’s important to understand that your overtime policy doesn’t change your obligation to pay overtime if the employee works it. If an employee complains that there is too much work to complete in a workday, you should evaluate whether there is any merit to the complaint. In California, generally, overtime for non-exempt employees is calculated on both a daily and weekly basis. Additionally, if an out-of-state employee performs work in California, then California’s overtime rules may apply. To fully understand your obligations, browse our other Wage and Hour blog posts and review Vigilant’s Legal Guide, “Daily Overtime in California and Oregon” (4063). If you have additional questions or would like further employment counsel, contact Vigilant today.

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