Question: Do employers’ own computers create potential overtime liability for off-the-clock work?

Answer:

Yes and a health-care company in California just learned that the hard way.  An employee of John Muir Health sued her employer on behalf of herself and a potential class of employees for overtime violations under both the Fair Labor Standards Act (FLSA) and the California Labor Code.  While the plaintiff in that case could not specifically allege the hours worked by employees, the Judge declined to dismiss the overtime claims because the plaintiff alleged that the employer’s computer systems would establish that the employees had worked off-the-clock.

Off-the-clock work is work that is performed for the benefit of an employer that is not counted towards an employee’s weekly hours worked and is not compensated.  This may take many forms, such as employees who put in extra work by coming in early, staying late, working through lunch or regularly checking email after work hours.  Employees may think they are being helpful, but if this time isn’t captured and compensated, it can leave employers vulnerable to overtime violations.

The named plaintiff in the John Muir Health case claimed that she and other employees would clock out, but then continue to conduct work, such as entering patient notes and processing insurance claims.  The employer’s EPIC and MIDAS computer systems track when employees are using those systems.  The employer’s KRONOS system tracks when employees clock in and out of work.  The plaintiff claimed that her overtime work, allegedly totaling about $30,000, could be determined by comparing her time entries in each of her employer’s three computer systems.

Some employer takeaways to avoid off-the-clock exposure:

• Ensure that hourly employees are not performing off-the-clock work and that your own computer systems do not establish otherwise;
• Do not allow employees to clock out and then continue working or to spend time monitoring or responding to emails in the evenings or on weekends;
• Make sure your management team knows not to reach out to hourly employees after work hours, which may create an expectation that the hourly employees respond;
• Consider limiting hourly workers’ remote access to computer systems to prevent off-the clock work from being performed;
• Implement a policy that prohibits hourly employees from engaging in off-the-clock work and emphasizes that all working time must be recorded; and
• Pay for after-hours work performed and take disciplinary action if the off-the-clock work is unauthorized.

About the Author:  Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.