Category Personnel/Employment Issues
Title FLSA and Overtime Issues
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FLSA and Overtime Issues

Lisa Ritchie was employed at St. Louis Jewish Light in various capacities for over seven years. The chief executive officer went to Ritchie and shared some extra duties with her. He told her to perform the work without doing overtime. According to Ritchie the work required her to perform overtime, which she recorded on her time card. The CEO again advised her to perform the work without doing overtime. So when Ritchie continued to record the overtime, she was paid for the overtime, but her employer fired her.

Ritchie then sued the company for retaliation for her insistence of recording overtime. She did not allege that she was not paid for the overtime she worked, and her counsel conceded at oral argument that she was in fact paid for all overtime work she performed. But she believed that she was fired for simply recording the overtime she had worked.

The court ruled in the favor of St. Louis Jewish Light. In the opinion, the court said, "Insubordination is not protected under the FLSA [Fair Labor Standards Act], and insubordination is not sufficient to trigger the anti-retaliation provision in 29 U.S.C. § 215(a)(3). As appellees' counsel noted at oral argument, if merely recording one's overtime is a 'complaint' that triggers the anti-retaliation provision of the FLSA, an employer would not be able to discipline an employee for working unauthorized overtime so long as the employee recorded the overtime."

Bottom line: As an employer, you must pay overtime, under the FLSA, to a nonexempt employee who works over 40 hours per week. Some states have even more restrictive requirements. However that does not mean that an employee can work overtime anytime he or she wants to. You should have clear policies regarding overtime, and then you can discipline the employee if he or she works overtime. But remember, you still must pay the employee, and as the employer, you cannot discipline by reducing pay.

An administrator who encounters at the end of the day a nonexempt employee who says that he or she has just a few more minutes of work to do in order to finish a project must stop the employee from working. The school is liable if this work beyond the end of normal work hours creates enough additional time for the employee to qualify for overtime. Stopping the off-the-clock work may save your school from a major overtime claim for back wages should a disgruntled employee later leave your school. If a complaint is filed with your state's labor department, it will usually trigger an audit of your payroll practices for all employees not just the disgruntled employee's records. A surprising number of disgruntled former employees succeed in collecting overtime pay and interest going back for months of employment for what everyone thought at the time was "volunteer" work. Employees cannot "volunteer" their time to perform their job responsibilities. You must pay them for all hours worked, even if it means paying them overtime.

Here is a sample statement that you can use in your employee handbook:

Overtime requirements shall be kept to the barest minimum necessary to accomplish the job that must be completed. However, if overtime is necessary, it must be approved by your supervisor. Unauthorized overtime may result in discipline procedures and even termination.

LLU 22.1

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.

Association of Christian Schools International
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Phone: 719.528.6906
ACSI.org

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