How to Minimize Risk for Unpaid Overtime

The Fair Labor Standards Act (FLSA) protects American workers by regulating many aspects of employment, including overtime pay for non-exempt workers. Non-exempt workers are hourly employees who are eligible for overtime when they work more than 40 hours per week.

Recently, the U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (FAB) to highlight employers’ obligations under the FLSA to pay non-exempt employees for all hours they actually work. This includes hours that were not scheduled in advance or approved by the employer.

The FAB was published to address the difficulties associated with this requirement in light of the unprecedented number of American employees engaged in remote work due to the COVID-19 pandemic.

When employees can perform their job duties at home or any other non-work location, it can be difficult for employers to track their hours and compensate them accordingly. Employers are not expected to “undergo impractical efforts” to investigate any work time their employees fail to report, but they are required to exercise “reasonable diligence” in tracking any hours worked by their employees.

One way that employers can meet this requirement is by offering employees a “reasonable reporting procedure” to record non-scheduled work time and then simply paying employees for all reported hours. However, if an employer’s reporting procedure for non-scheduled work hours is designed to prevent or discourage employees from accurately reporting their actual hours worked, their efforts do not count as “reasonable diligence” under the law.

Here’s the bottom line: It’s an employer’s responsibility to pay their employees for all work performed on behalf of the company. If an employer knows or “has reason to believe” that an employee spent time performing such work, they are required to account for that time and pay the employee, whether or not the work was scheduled or authorized.

Employers who fail to exercise reasonable diligence in tracking their employees’ hours or fail to pay employees for their time worked may be subject to DOL audits, penalties, and lawsuits from unpaid or underpaid employees.

What to Do If You Have Unpaid Wages

When you lose out on income because your employer fails to account for all of your regular or overtime hours worked, you have the right to demand compensation for your unpaid wages.

If you believe you are entitled to unpaid wages from a Tennessee employer, you should:

• Start by contacting your employer to request the wages they owe you. Date and submit your request in writing and maintain a copy for your records.
• File a claim with the Tennessee Division of Labor Standards (DLS) if your employer refuses to compensate you for the time you worked. It’s a good idea to consult with a knowledgeable employment law attorney at this stage to ensure your claim is filed on time and meets all administrative requirements.
• File an unpaid overtime lawsuit in state court If the claim you file with DLS is unsuccessful. With a successful suit, you could recover compensation for your unpaid wages, overtime premiums, attorney’s fees, and more.

What the Employment and Commerce Law Group Can Do for You

The Employment and Commerce Law Group is dedicated to fighting for the rights of employees throughout Tennessee. If you suspect that you are owed unpaid wages or overtime premiums by your employer, let us help enforce your rights. Contact us today to discuss your case with our experienced employment lawyers.