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Overtime question
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Overtime question
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
I have an employee that is non-exempt, and also works as an on-call employee.
He works 40 hour weeks, and then we pay him an additional 4 hours of pay each day that he is on-call, which is rotated
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Forums » Topic Forums » Legal Forum » Overtime question
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Overtime question
posted at 5/31/2009 9:00 AM EDT
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Posts: 3870
First: 2/12/2002 Last: 11/2/2009 |
"An employee who is on-call must be able to use the idle time for his or her own purposes..."
Thanks for the quote, rrupert. Note that the quote doesn't refer to "all his or her own purposes" which would include having a drink. Rather, the employee is allowed to use the time for personal purposes. A prohibition against drinking while on call is very reasonable and not necessarily compensable. |
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Overtime question
posted at 5/31/2009 10:31 AM EDT
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Posts: 6
First: 5/29/2009 Last: 5/31/2009 |
Okay, so how much trouble do you think he will get into? Like I said, I signed off on all of these timecards, so I feel somewhat at fault for all of this, because I didn't notice sooner.
Is it likely he gets terminated? He's one of my better employee's. I know it's solely up to the discretion of the employer to terminate him or not, but in most corporate companies, with situations like this where a mistake was being made on the timecard, that was a pretty large mistake, and the manager approved all the time cards, what do most companies do? Terminate, recoup, press charges? Or, since the manager approved is the employee cut any slack? Say, a slap on the wrist and stern warning? Possible payments back to the company to repay the overpaid OT? |
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Overtime question
posted at 5/31/2009 11:02 AM EDT
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Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
Speaking in general terms and nothing specific I have rarely cut any employee any slack when it came to falsification of a time card. theft is theft. However, sometimes a falsification comes from a misunderstanding created by poor instructions or an antiquated time keeping process. I have, a couple of times, faced that issue.
managers have never been given any slack by me when it comes to approving the time of their employees. The manager has never been accused of falsifying their employees time sheets but I have seen them terminated for negligence (failure to manage) and signing a document known to them to be false. Managers are usually held to a higher standard. |
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Overtime question
posted at 5/31/2009 2:06 PM EDT
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Posts: 3870
First: 2/12/2002 Last: 11/2/2009 |
I agree with HRPro. IF the timecard was submitted and paid without any manager approval, then the onus typically falls on the employee when there are clear instructions on what can and can't be claimed. However, if the employee submits a falsified timecard, intentionally or not, to a manager and the manager approves it, the responsibility generally shifts to the manager. |
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Overtime question
posted at 5/31/2009 5:34 PM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Hate to be harsh, but here goes....
If you were at my company, you both would be in trouble for it -- probably terminated immediately. Because it shouldn't have taken you, as manager, 10 months to notice an extra 28 hours in a two week period and I don't see how this could be an honest mistake by the employee. If it had been lower, say 4 hours every two weeks, that would be understandable. But what you basically just proved is that you weren't really looking at timesheets at all in the last 10 months, but merely rubber stamping them. You weren't upholding your management duties or protecting your employer by not managing your employee's time. Multiply out the cost of the extra 28 hours a pay period ...that is what this "mistake" has cost the company. And in California (one of the most employee friendly states), it is my understanding that the employer would have to take the employee to court to get any of that overpaid amount back and only if they won the court case. They can't just start subtracting it out of future paychecks. All you can hope is either (1) no one will notice or (2) fall on your sword, admit the mistake and hope that you will be forgiven and still have a job tomorrow. With option (1), you should realize that should someone else discover the error that there is a good chance you would be immediately terminated for "gross misconduct" and possibly lose your rights to unemployment and COBRA, because this could be viewed as stealing. |
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Overtime question
posted at 6/9/2009 3:33 PM EDT
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Posts: 108
First: 2/1/2007 Last: 9/9/2010 |
I think that rather than relying on the FLSA standards to determine whether this employee should be compensated for "on-call" time, you really should head over to the CA Department of Labor Standards and Enforcement Website. The IWC has put out a number of opinion letters that address various on-call scenarios and whether they are compensable or not. It's important to note that the FLSA standard and the CA IWC standard are not the same - and you rely only on the FLSA at your own risk.
From the information you've provided, and my knowledge of the CA Labor Law, I don't think this is a clear cut case. |
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