A recent Opinion Letter from the U.S. Dept. of Labor straightened out how employers should deal with two common overtime-pay scenarios that don’t seem to be covered in the regs.
The four-page Opinion Letter 2008-7NA came in response to an employer that asked about how to account for overtime when a nonexempt employee works through scheduled breaks or puts in extra time that isn’t recorded on time sheets or cards.
Here’s a summary of the major questions and DOL’s responses:
Q: Our company policy is that nonexempt employees must record the periods when they put in extra hours, such as when they work through meal breaks. What if an employee works through mandated meal breaks but but ignores policy by failing to record the time worked. Are we on the hook for figuring and paying OT, even though the employee broke the rules?
A: Yes, you must pay OT. The Opinion Letter notes that, under the Fair Labor Standards Act (FLSA), it’s ultimately the employer’s responsibility to keep track of the time and, if necessary, prevent employees from working through breaks and piling up OT. Just having a policy doesn’t let the employer off the hook for paying OT.
Q: Can we require that employees notify managers before working through meal breaks, so that managers can approve and approve OT? And would we be exempted from paying OT if an employee failed to notify a manager?
A: You can have an in-house requirement and discipline employees who don’t follow the policy, but you still must pay OT, whether or not the employees notifed the managers.
Note: DOL Opinion Letters don’t carry the weight of law nor are they used to cite precedents. But they do show trends and tendencies DOL has regarding individual rulings.
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