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John
John, Employment Lawyer
Category: Employment Law
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Experience:  Exclusively practice labor and employment law.
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We have an employee handbook that states the following: any

Customer Question

We have an employee handbook that states the following: any employee needing to work overtime/schedule time must have prior written authorization from a manager or supervisor at least one (1) hour before the end of the scheduled work day. If an employee
does not get authorization and stays late (whether actually working or riding the clock), do they still get paid? Also, we have a timeclock. If an employee "forgets" to clock in/out, do they get paid for the scheduled work day? What if they were not scheduled
to work but came in anyway (still forgot to click in/out)? Likewise, in our handbook, it states all PTO (they have only vacation, no sick) must have prior written authorization and if none is given, then PTO is not paid. We recently had an employee call out
and she emailed me the next day asking to be paid PTO but it was NOT approved. The State of TN does not require employers to pay/offer PTO but we do. So, do we still have to pay her when she did not get prior authorization to use PTO?
Submitted: 1 year ago.
Category: Employment Law
Expert:  John replied 1 year ago.

Hi, thanks for submitting your question today.My name is John. I have over 13 years of legal and consulting experience in this area. I’m happy to assist you with your question today.

Generally, they wouldn't get paid the overtime unless management knew or should have known he worked that overtime, despite not having the authorization. For example, he is working in the shop after shift and a manager walks by seeing him work without saying anything. if management had knowledge then it must be paid.

They do get paid without clocking in or out because the law that controls this - the Fair Labor Standards Act- does not require time clocks. Rather it states that an employee must be paid at least min wage for all hours worked and overtime for all hours over 40 per workweek for the employer. But the employer could discipline employees for not using the clock. If they just come in and work without any scheduling (and without clocking in out) it again depends on whether management knew or should have known they were working those hours. Only if they had knowledge of the work would the employee be working on behalf of the employer and only then be entitled to pay.

You do not have to pay PTO when the day off was not per-authorized for PTO, your policy rules in that situation.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as itis the only way I am able to get credit for my answers. Thank you, ***** ***** wish you all the best with this matter.

Customer: replied 1 year ago.
for the timeclock, I know it's not required (record keeping is though) but what I meant is, the employee is scheduled to work 8am to 6pm, office closes for an hour for lunch which the employee is supposed to take. The manager is out of the office due to maternity leave (and I would be out to see clients), so the employee is working alone. The employee clocked in at 7:45AM (and per the Labor Law, I believe I can pay them starting at 8AM, not 7:45AM because they never start work that early), did not clock out for lunch but did take one, and then clocked out at 8PM instead of 6PM. Their workload was not complete and they left no notice as to why (which is company policy). Do they get paid from 8AM to 6PM and I deduct time for lunch.....or do they get paid for 8AM to 8PM?
Then my other question was.....Does an employee get paid for work when they did not clock in or out?
Let's say the employee scheduled time is 8AM to 6PM but forgot to clock in at 8AM. They let me know about this a day (sometimes longer) after they forgot to clock in. The time clock shows they clocked out for lunch, clocked out at their scheduled time. Do I pay what they were scheduled? or do I pay what they tell me was their hours for the day (though I have no way of proving otherwise since they did not clock in or out).
Customer: replied 1 year ago.
Also, can you give me the TN DOL code as a reference so I can include this when I discuss this with my employees?
Expert:  John replied 1 year ago.

This matter is controlled by federal wage law and regulations which you can find here http://www.dol.gov/whd/flsa/. Also review the relevant regulations here http://www.ecfr.gov/cgi-bin/text-idx?SID=f27bccbfd43a42e0214785f415a956cc&mc=true&tpl=/ecfrbrowse/Title29/29cfr785_main_02.tpl- in particular 785.11-.13; .18-.19.

In the example you gave they worked without knowledge and without authorization so compensation is not owed for the lunch or working beyond 6 pm.

As to your other example - if someone was scheduled to work, and came into work and worked extra hours, you would just pay the regularly scheduled hours because the policy says they have to get clearance before working extra. When you look at the regulations you'll see that one is that management has to take steps to ensure work that is not wanted is not done. By having a policy like this you have protected yourself from these types of issues.

Customer: replied 1 year ago.
The second link could not be found.
The first link I went too before and could not find whether or not employee's get paid for work they claim they do but their time is not recorded. Nor could I find whether to pay scheduled hours versus hours they clocked in and out for. I also tried to find this info on the TN Dept. of Labor and could not find what I needed.
I've had different variations of employee's time and overtime that is not approved nor on the schedule, and that is why I am trying to find the specific laws on wages and reported time.So basically.....if they are scheduled for a time, and work over, unless their workload reflects the overtime or they received approval for the OT, I do not have to pay them that overtime. Secondly, if the employee's forget to click in or out, I only pay for the time that is on the time clock (recorded), correct?
Expert:  John replied 1 year ago.

What you are looking for - an exact law that states that having a mandate for pre-authoriztion in your policies prevents you having liability for non-authorized hours - does not exist. You could in theory write the department of labor and ask them for their opinion on the matter, but a) that would take months and b) a court may very well disagree with their opinion because the DOL tends to be very employee friendly. The caselaw in a nutshell says that employers must make every effort to ensure work not desired is not worked.29 CFR 785.13. Setting up a rule for no non-authrized work is fine, but you also must enforce it with warning and consequences to employees. You also cannot knowingly allow them to work then tell them they broke the rule. So only when they a) work without pre-authorization and b) without management knowing of the work while they are doing it, can you not pay those hours.

So lets try to give you some black and white rules. From now on:

1) If an employee comes in when not scheduled and not-authorized to work and works these hours without management knowledge - he is not paid for that time and is given progressive discipline each time he does this (i.e., verbal warning, written warning, suspension, termination)

2) If an employee does not take a mandated lunch without pre-authorization to skip lunch and works this time without management knowledge - he is not paid for that time and is given progressive discipline each time he does this (i.e., verbal warning, written warning, suspension, termination);

3) If an employee stays after a scheduled shift without pre-authorization and without management knowledge - he is not paid for that time and is given progressive discipline each time he does this (i.e., verbal warning, written warning, suspension, termination)

If you wanted to be really nice, maybe you would pay them the time the first time they break the rule but certainly not the later times.

I hope this clarifies the matter. Thanks.

Expert:  John replied 1 year ago.

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