Family Employers And The Wage And Hour Risks Of "Off The Clock" Work

A collective action complaint filed in 2017 alleged that the U.S. Post Office violated the Fair Labor Standards Act (FLSA) in its treatment of employee overtime pay.

The complaint, which includes around 40 plaintiffs, alleges that managers, who received bonuses for keeping overtime pay low, required mail carriers to work "off the clock." It further claims that managers altered or deleted employee time cards in order to reduce the number of hours they worked in a week to avoid paying overtime that was earned.

An investigation conducted by the Office of the Inspector General led the USPS to make back pay payments to 99 current and former mail carriers and suspend multiple supervisors and leaders. This new lawsuit expands the number of mail carriers affected by the time card tampering to over 300 in the Richmond, Virginia, area.

A similar lawsuit accuses the Richmond branch of the USPS of the same wage and hour violations. A letter carrier there discovered the alleged time card tampering when she filed a workers' compensation claim and noticed that some of the times on her time cards had been changed. Eric Philips "Nearly 300 in Richmond join lawsuit against USPS over time card manipulation," www.nbc12.com (Feb. 15, 2017).


Commentary and Checklist

The USPS’s policy of incentivizing low overtime pay, and doing so without providing proper oversight, created a risk because it encouraged time card tampering.

Instead of creating an incentive to limit overtime, family employers must state that overtime is not permitted without prior permission and justification. 

To avoid other wage and hour violations, family employers must have staff clock in as soon as they begin working. Never allow staff to perform work duties off the clock. Require them to take and record lunch breaks and rest periods. Staff should never clock in or out for a co-staff member. 

Even if you have a written policy that staff members should not work overtime without prior written permission, if they violate the policy and do work more than 40 hours in a week, you must pay them for all of that time.

Here are some ways family employers can prevent a wage and hour traps:

  • Pay staff for all hours that they work or are required to be in the workplace, including meetings or times they work through lunch;
  • Encourage staff to talk with a manager if they feel they were not fairly compensated for hours worked;
  • Immediately address any wage and hour grievances raised by staff;
  • Keep thorough records of hours worked and wages earned by staff and regularly evaluate staff pay to make sure it meets FLSA regulations;
  • Pay staff promptly and regularly;
  • Monitor your state's minimum wage laws, as well as the federal minimum wage, and always pay all staff at least minimum wage.
  • Routinely review your wage and overtime policies to make sure they are in compliance with the Fair Labor Standards Act and state laws, which are often more strict on employers.
  • If in doubt, remember that government regulators tend to take the position that a staff member is eligible for overtime unless otherwise proven to the contrary.
  • Consider an independent audit of your staff classifications before designating staff as overtime exempt. It is recommended that you select a skilled labor/employment attorney as the auditor.
  • Closely examine the salary and job duties of staff to determine his or her status as exempt or non-exempt from overtime. Do not rely solely on job descriptions or job titles.
  • When in doubt, seek the advice of counsel when making wage classifications for your staff.
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