Document, document, document… it seems often that this is all HR people in the “trench” ever say. Supervisors and managers get tired of hearing it and, face it, we get tired of saying. Generally nothing ever happens with that documentation given the thousands and thousands of time it is said. Just occasionally we get an example of why documentation needs to be done.
The example in question was a California Fair Labor Standards Case. An employee by the name of Henry Jong sued the Kaiser Foundation Health Plan to recover back overtime. The case is kind of convoluted but I will try to summarize it using bullet points.
- Henry Jong was an Outpatient Pharmacy Manager. He was originally deemed to be an exempt employee but then later in a class action suit Kaiser reclassified OPMs as non-exempt.
- They put rules in place that stated that overtime could not be worked without prior approval. They had a policy to that effect. They communicated that policy.
- Anyone who worked overtime was paid for that overtime, whether or not they got prior approval.
- Jong was never denied overtime nor was he ever not paid for worked overtime.
- Jong was responsible for trying to keep the pharmacy budget in line.
- Prior to being reclassified as non-exempt Jong worked 50 or more hours per week.
- Jong continued to work those hours even though he was not authorized to do so.
- He was working these hours “off-the-clock” and wanted later to be compensated for them.
- Jong said that management knew that it took 50 hours to get the job done and they should have known he was working extra hours.
Unfortunately for Mr. Jong, but happily for Kaiser, the lower court and the appeals court did not buy his argument. Why?
The reason Mr. Jong did not prevail was that Kaiser had a policy, communicated the policy and followed the policy about overtime. In fact at one point Jong admitted “that he ‘knew of Kaiser’s written policy that OPMs should be clocked in whenever they were working,’ that he was always paid for time he recorded on Kaiser’s recording system, including overtime hours, that he was instructed he was eligible to work and be paid for overtime hours, that there was never an occasion when he requested approval to work overtime that was denied and there were occasions when he worked and was paid overtime even though he did not seek pre-approval, that he was not told by any of his managers or supervisors or any other Kaiser management personnel that he should perform work before he clocked in or after he clocked out or otherwise work off-the-clock,1 and that he signed the attestation form and understood it was an attestation that he would not work off-the clock.”
Mr. Jong just assumed he needed those extra hours to get his job done and admitting that and asking for extra time would have potentially caused his bosses to question his ability to perform the work.
How to save yourself
What would you do in a similar situation of someone claiming they had worked “unauthorized overtime”? According to attorney Doug Hass, of Franczek Radelet P.C., you do the following:
- Have a clear policy that you will pay employees or ALL hours worked;
- Working unauthorized time could subject the employee to discipline;
- Make sure employees understand to get authorization ahead of actually working;
- Make sure you have employees properly record time and pay them for ALL the time they worked whether or not they had approval;
- Make sure you discipline employees who violate the policy.
I will add you need to communicate this more than once. Some people have to hear it more than once. Also make sure your supervisors are not encouraging people, either explicitly or implicitly, to “do a little extra.”
Kaiser did these things and it saved them in two different courts, wouldn’t you like the same result?