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John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 4466
Experience:  Exclusively practice labor and employment law.
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I'm in arizona. I have an employee who keeps clocking out and

Customer Question

I'm in arizona. I have an employee who keeps clocking out and working later than his documented hours even though there is a written policy that overtime has to be approved in writing in advance of taking the time. I'm not sure it I still have to pay him.
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Submitted: 6 months ago.
Category: Employment Law
Expert:  John replied 6 months ago.
The regulations state, and there is caselaw supporting this, that work done without the knowledge of the employer is not compensable. Moreover the regulations state that just having a rule of no unauthorized work is not enough. As follows: Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time. (Handler v. Thrasher, 191, F. 2d 120 (C.A. 10, 1951); Republican Publishing Co. v. American Newspaper Guild, 172 F. 2d 943 (C.A. 1, 1949; Kappler v. Republic Pictures Corp., 59 F. Supp. 112 (S.D. Iowa 1945), aff'd 151 F. 2d 543 (C.A. 8, 1945); 327 U.S. 757 (1946); Hogue v. National Automotive Parts Ass'n. 87 F. Supp. 816 (E.D. Mich. 1949); Barker v. Georgia Power & Light Co., 2 W.H. Cases 486; 5 CCH Labor Cases, para. 61,095 (M.D. Ga. 1942); Steger v. Beard & Stone Electric Co., Inc., 1 W.H. Cases 593; 4 Labor Cases 60,643 (N.D. Texas, 1941)) In all such cases 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. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.What this means is that the rule combined with enforcement of the rule would take you off the hook for payment. My best advice to you is that you pay these past hours, but remind him in writing of the policy and that future unsolicited work will be in violation of the policy, not compensable, and may be reason for discipline or discharge.
Expert:  John replied 6 months ago.
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.

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