Should Off-Site Employees Verify Their Own Time Records?

Yesterday, we looked at four of attorney Paul Lopez’s five recommended questions for avoiding problems due to overtime-based lawsuits. Today, our analysis of the fifth question—plus an introduction to a resource that provides you with the California-specific wage/hour handbook policies you need.

Lopez is a labor and employment attorney with the law firm of Tripp Scott.

For questions 1-5, click here.

5. Do we have the employees themselves verify their time records?
One of the things a company can do is to require their hourly employees to keep a daily time sheet, and keep diligent track of the time they are actually working. Then have those employees personally sign off on their daily time sheets.

Another mechanism is to not allow employees to use company smartphones or pagers after hours. Have the customers wait until the next business day.

“If that’s not realistic, I would say if the company wants to have employees fielding those customer calls and providing that kind of customer service, that’s fine. But monitor it, track it, and be realistic about how much time the employee worked after punching out,” Lopez says.

If the employee says he or she worked an extra two hours that night, but you can tell by your records and the type of work the employee does that he or she was logged onto the computer for 20 minutes and had a 15-minute cell phone conversation, how on earth would the employee have worked two hours?

All of these things become much more powerful evidence a company can use to rebut an employee’s claim of working 60 hours a week.

California-specific policies on overtime, hours of work, and more! Learn more here.

However, Lopez says, “This is a very general analysis, and each situation should be examined individually. But if the employee is essentially waiting on calls such that he or she can’t really engage in his or her normal, day-to-day activities while  waiting, then generally that’s going to be deemed compensable time. It’s actually a very fact-intensive inquiry, and there are no easy answers,” Lopez says.

On one end of the spectrum is the firefighter who must wait at the stationhouse all day, every day, during his three- or four-day period of service. “That’s clearly compensable. But someone who takes home the cell phone and sometimes gets a call and sometimes doesn’t, that could be argued. It really depends on the nature of the work, and how put out the employee is by waiting on the calls.”

Potential for Penalties Is Huge
It’s important to get this right, Lopez says, because the potential for penalties is huge. “I like to use an illustration that $1,000 of unpaid overtime claims could cost your company $100,000. The law says the employee is entitled to the unpaid overtime plus liquidated damages equal to that amount. Then, the employee also gets his or her attorneys’ fees and costs.

“I usually tell clients,” says Lopez, “that unless you have what you believe and what we believe is a rock solid defense, or at least a very strong one, you have to settle these cases because it is so cost-prohibitive to litigate them. The exposure can be so great and the results so uncertain; don’t let the plaintiffs’ attorneys rack up a lot of time prosecuting a claim. Nip it in the bud and move on.”

Lopez’s final words of advice? “You want employees to work hard. You want them to be diligent and provide good customer service. You want them to go that extra mile. You just have to pay them for that; don’t be penny-wise and pound foolish.” Good advice.

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