Is An Employer Responsible When an Employee Doesn’t Report All Hours Worked?
By Marylou V. Fabbo - Skoler, Abbott & Presser, P.C.
October 4, 2017
Employers often place the burden on employees of recording hours worked. Employee handbooks have provisions that require employees to record and report all time worked. Employers may require employees to review and sign their timecards verifying their hours. Policies may prohibit off-the-clock work and notify employees that they must report errors in pay. But are these things enough to free employers from liability for unrecorded, unpaid wages? According to the court in St. Pierre, et al. v. CVS Pharmacy, Inc., No. 13-13202 (D. Mass. Sept. 18, 2017) (Hillman, D.J.), maybe not.
Employees Unable to Record Time Spent Using On-Line Training Modules at Home
CVS requires Physician Technicians (PT) to regularly complete mandatory training courses through LEARNet, which is an online training tool. The LEARNet program does not record how long it takes an employee to complete the training or failed attempts at completing the courses. The way for a PT to be paid for hours spent on LEARNet training outside of the store was to report it to their Lead PT. Then the lead would enter the time and have the store manager or shift supervisor enter the hours into the payroll system. In this case, the person who was responsible for making sure mandatory training was completed (the Lead PT) never verified whether the PTs were paid. And the store manager who was responsible for compensation was aware that at least two employees trained outside a regular work shift. That was enough to hold CVS liable, even though CVS had written policies that prohibited “off-the-clock” work and required all PTs to record and report all time worked and review and sign time cards to verify they had been paid for all time worked.
What Happens when an Employer’s Record of Hours is Incomplete?
Generally, when an employer does not have records of time worked, courts will “take the employee’s word” as to the number of hours that the employee worked but wasn’t paid. That’s because under Massachusetts law, it’s the employer’s burden to maintain time records for employees. Citing a Supreme Court decision, the St. Pierre court set forth a two-part standard to recover unpaid wages when the employer’s records are inadequate or wrong. First, an employee must prove that he or she performed work for which he or she was improperly (or not) compensated. Second, the employee must produce sufficient evidence to support his or her claim as to the amount of work performed. If the employee does both, the employer must rebut the employee’s position with “precise data” or “otherwise negate the reasonableness of the inference.” Even if the figures aren’t precise, a court can award an approximate amount to an employee. In the CVS case, the court didn’t buy one of the employee’s estimates of time worked, but it applied the estimate another employee had submitted in calculating awardable damages.
Don’t Turn a Blind Eye
CVS had the right policies and procedures in place, but that was not enough. An employer’s policies to insure all employees are paid correctly by putting some of the burden on the employee only go so far. While it’s helpful to have the written policies in place, an employer cannot simply look the other way when it is aware – or should be aware – that employees are working off-the-clock. Responding to a manager’s several emails each night or seeing an employee taking a lunch “break” while eating at his or her desk working is likely notification to the employer that the employee’s hours worked include that time. Pay the employee for the hours, but if the time was worked in violation of an employer’s policy, it is usually okay to take disciplinary measures – as long as doing so isn’t retaliatory.
Massachusetts Paid Family Leave Bill Passed by Legislature: https://t.co/dforavTZhV
The EEOC Compares Harassment Prevention to Crime Prevention: https://t.co/1L7d1I14NA
Oregon Bureau of Labor and Industries Issues Final Administrative Rules on Predictive Scheduling: https://t.co/aF0v1bUauD