Q. Overtime is not permitted, however, our workload is overwhelming. Is it legal to have an employee clock out and then go back to complete the task (without being paid overtime)?
A. It appears that you are referring to hourly employees who are not exempt from the overtime requirements under state and federal law. Employers are required to pay hourly nonexempt employees for all "time worked." There are many reasons overtime, as a matter of course, is not permitted at companies. A primary reason is the cost. Overtime costs companies one and a half times the regular hourly rate for all time worked that is over 40 hours in any work week. Most often companies do not want to offer time and half for the same work employees are doing for the first 40 hours of a work week.
Companies do not want to encourage employees to do less during the standard work day so that they can then increase their compensation by needing to add additional hours of work. At the same time, employees want to have reasonable expectations of what they can accomplish in a standard work day.
When the work needed to be done exceeds current staffing, companies may allow overtime if they see this is a short term solution for an urgent need. They will also monitor how much work can be completed before the need to hire additional staff arises.
If staff members are returning to work after clocking out, management does not get an accurate picture of what can be accomplished on a standard day. How you feel about this may depend on which side of the timecard you are on.
Based on a conversation with Attorney Josh Black, of Bello Black & Welsh based in Boston, “It is unlawful to require an hourly nonexempt employee to "work off the clock" for any period of time. In fact, an employer can be penalized for knowingly allowing this to occur, even if the employer did not request employees to work without pay. There are various penalties available for this kind of violation. If a court or agency determines that the employer's violation was intentional, the employee can recover up to three times the lost wages, plus interest and his or her attorneys' fees."
It seems optimal staffing is the best resolution for an overwhelming workload for hourly staff.
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