Employees Need to Be Compensated for "Off-the-Clock" Work

In an all too familiar scenario, another large wireless operator has been forced to pay back wages for overtime work. This time, Sprint (which has paid out millions in collective action wage suits in recent years) paid a $120,000 fine after a federal labor investigation revealed that non-exempt employees at a call center in a Bristol, Virginia were not paid for “off-the-clock” work. 

Courts have held in similar situations at telecommunications companies (including Sprint) that “off-the-clock” work call center employees must do before they can take their first call of the day – booting up their computers, logging onto the company's network, opening computer programs and reviewing company e-mails –  constitutes preliminary work that is necessary to the principal activity performed by these individuals. Since this preliminary work is done for the benefit of the employer, it is compensable under the Portal-to-Portal Act. While the Sprint fine was based on an average of only 9 minutes per employee per day of unpaid time, a class action lawsuit just filed by former employees of a call center operated by APAC Customer Services, Inc. in La Crosse, Wisconsin alleges that employees (who engaged in the same type of activities before clocking in as the Sprint workers) were underpaid for 45 minutes per day for three years – and APAC has around 9,000 workers who could join this suit.  

Lawsuits in such situations have been more frequent and successful in recent years. This may be the result of the 2005 U.S. Supreme Court decision, Alvarez v. IBP [546 U.S. 21 (no. 03-1238)],which affirmed that when non-exempt employees perform “integral and indispensable” activities for their employer's benefit, their workday begins, and it continues until they complete their last task of the day.

The takeaway is simple. Companies must be aware of what non-exempt employees are doing before they officially “begin” the workday. Companies should develop a policy that ensures that non-exempt employees are not permitted to begin work prior to their regular starting time (or continue working after their ending time). However, employees who break the rules, even if they are disciplined, may be entitled to be paid for unauthorized overtime work in certain situations. Thus, workplace policies alone are not enough – companies must monitor and enforce these policies to avoid liability.

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