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BusinessColumnistsCarrie Mason-Draffen

Unauthorized OT: If they worked it, you must pay it, expert says

If an hourly employee works beyond normal working

If an hourly employee works beyond normal working hours, he or she must be paid for that time, even if it was not approved by the company. Photo Credit: Getty Images / iStockphoto / alexdans

DEAR CARRIE: I read with great interest your recent column that talked about the “suffer-to-work” concept and how hourly employees have to be paid for all hours worked, even if the extra time was unnecessary and unapproved. The idea doesn’t seem fair. What if your company handbook states that management has to approve extra hours ahead of time, yet an employee works overtime without that approval? And when those unapproved hours result in overtime pay because the employee winds up working more than 40 hours a week, it can be detrimental to a small business. If the work isn’t time sensitive and can be stopped at 4 p.m. and picked up the next day, it seems like the employee is calling the shots on extra hours. Are there any exceptions to this labor law?

—Suffering Employer

DEAR SUFFERING: Great question. For an answer, I turned to a lawyer who represents employers.

If an employer does not want an employee to work beyond normal working hours, the employer must take steps to prevent the employee from working, said Christine Malafi, a partner at Campolo, Middleton & McCormick in Ronkonkoma.

But if the hourly employee works, the employer has to pay, she said.

“This remains true even when the employer has not requested the overtime, or where the employee fails to report the overtime immediately,” she said.

And it is easy to prove employer liability, she said.

“To establish an employer’s liability under the Fair Labor Standards Act for unpaid overtime, all that need be shown is an employee’s email, text, etc. related to employment during his or her off hours,” Malafi said.

What can you do to avoid the unauthorized work?

“To protect against this, employers should have written, clear policies outlining overtime rules and should not provide employees who are not authorized to work after hours with access to work emails, etc., from outside the office,” she said.

DEAR CARRIE: Recently, my sister’s car wouldn’t start, and she had to have it towed. And that meant that a good chunk of her workday was shot. So she called the office to tell her supervisor what happened and requested a vacation day to cover the missed time. When she returned to work the next day, she was told that she was on notice because employees must advise the office 24 hours ahead of time before taking a vacation day. If she receives two more notices, she could lose her raise. She could have called in sick, but she wanted to be honest. Is it legal for the company to be so strict?

— Too Punitive?

DEAR TOO PUNITIVE: Because bonuses aren’t mandated, companies can decide the terms for them. That’s the legal answer.

But I have to wonder about a policy so strict that it punishes employees for their honesty. That is no way to run a company.

DEAR CARRIE: My husband works for a Long Island company that is constantly three to four weeks behind on payroll. He hesitates to leave for fear he will not find another job in his field. If he quits, would he be entitled to unemployment while he looks for a new job?

— Working for Nothing

DEAR WORKING: Since he isn’t being paid, he might be able to make the case that he is as good as unemployed. But he should check with the state Labor Department, which stresses that unemployment-benefit claims are decided on a case-by-case basis.

Have him call the department’s Telephone Claims Center at 888-209-8124.

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