EMPLOYMENT LAW: BENCHMARK PRACTICES

EMPLOYEE HANDBOOKS AND POLICIES

Having a clear written overtime policy along with diligent enforcement of the policy can provide a defense to an overtime claim under the Fair Labor Standards Act (FLSA).

An outpatient pharmacy manager (Jong) sued his employer, Kaiser, for unrecorded and unreported overtime hours that he had worked “off-the-clock.” Kaiser, he claimed had disciplinary policies in place which required that he stay within a budget by not working overtime hours. This policy he alleged was at odds with his job description and the volume of work Kaiser gave him to do. If he failed to complete his job duties each week during his forty hour per week budgeted by Kaiser, he feared discipline for underperformance of his duties. Thus, Jong contended he was left no choice by Kaiser but to work “off-the-clock” in order to stay within the budgeted hours set by Kaiser and complete the duties Kaiser assigned.

Before the lawsuit, Jong had signed a document stating that he would not work off-the-clock. That document along with Kaiser’s written policy requiring that its outpatient pharmacy managers clock all their hours when working, helped Kaiser win the case. The California Court of Appeals dismissed Jong’s case against Kaiser under the FLSA. Jong v. Kaiser Foundation Health Plan, Inc. (Cal. App. 1st Dist. 2014).

BENCHMARK PRACTICE:
1.) Have a written policy that non-exempt employees clock all their time and pay all overtime.
2.) Have all non-exempt employees sign a statement attesting that they will not work “off-the-clock”, with the paperwork they execute upon hire and retain a copy of the document in their files.