Category Personnel/Employment
Title Do You Have Nonexempt Employees Arriving Too Early or Staying Too Late?
Preview Nonexempt Employee Arrival and Departure Times

Do You Have Nonexempt Employees Arriving Too Early or Staying Too Late?
Burt Carney

Nonexempt employees are those employees who must be paid overtime when it is earned, whether they are salaried or paid by the hour. In schools, these employees typically make up the support staff. What do you do if one of these employees shows up early or wants to stay late "just to help out? The federal Fair Labor Standards Act specifically states that "it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them" (29 C.F.R. §785.13, italics mine). Employees who "just want to help out" by volunteering extra time can create serious labor violations and financial responsibility for your school. Your school must pay these employees for all the work they do within the realm of their job description and for any volunteering they do if the work is within the parameters of their job description. They can't just "volunteer" to help out.

Establish a clear policy regarding work time for nonexempt employees. Make it clear in the policy that any deviation from an employees normal work schedule—including but not limited to beginning work early, staying late, working though lunch, and working from home—must be specifically approved in advance by way of whatever procedure you set up. Be sure to include clear consequences in your policy for any violations. Follow your warning system or progressive discipline system up to and including termination if there are repeated violations. Be firm and consistent in the application of the policy. Doing so could prevent a state labor department investigation and could save you thousands of dollars in "overtime" claims from a disgruntled former employee later on. Example: Cingular Wireless had to pay $5.1 million to 25,000 customer service representatives because they often began working before their scheduled shifts and continued working after their shifts ended, yet they weren't paid for their off-the-clock work. They later sued for damages. There are many other examples, including public school districts being caught with this problem.

LLU 18.2


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.

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