Meat+Poultry - April 2018 - 89

work, such meetings must be pursuant
to an explicit policy or established
practice requiring employees to report
early or stay at the end of a shift to
attend such meetings. The occasional
ad hoc meeting to address a specific
issue will generally not qualify as
compensable. Similarly, if an employer
regularly permits or "suffers" employees
to engage in preliminary or post-liminary
functions that are arguably an intrinsic
element of the job, such as completing
work-related physical or clerical tasks,
responding to customers or clients,
start-of-the day preparations or end-ofthe-day activities, such work is likely
compensable time. However, if the work
activities are "de minimis," meaning
the time involved is insubstantial
and indeterminate, such as of a few
seconds or minutes duration, it would
be non-compensable time under wellestablished FLSA precedent. But, the
"de minimis" defense to a claim is
unique and very fact-specific.
Most often, claims for unpaid
work time involve activity of which
the employer was totally unaware.
Typically, a claim is made by an
employee or employees of having
performed work-related duties either
before or after the scheduled workday,
usually over some extended period of
time. This generally creates potential
overtime liability. The liability period
under FLSA can extend back three
years. The employer is now put in

the position of having to disprove the
claims. With no time records or other
documentation to rely upon, it puts the
employer in a difficult legal position
since the presumption is in favor of the
employee. If the employees claiming

Employers should
establish a policy
clearly requiring
employees to receive
prior authorization
before engaging in any
overtime work.
the off-the-clock work produce any
type of documentation showing when
they engaged in such activity, an
employer would likely be unable to
refute the claim.
MINIMIZING CLAIMS
So, what should an employer do
to minimize the potential for such
wage claims? First, employers
should have in place a policy clearly
requiring employees to receive prior
authorization before engaging in
any overtime work. Secondly, as a
necessary adjunct, the employer
should also have a policy requiring
employees to report all off-the-clock
work, and a reasonable process for
doing so. The employer should provide
examples of what activities would be

considered working off-the-clock. If
employees ignore the policy and fail
to report off-the-clock work for which
they seek payment, you will have a
strong argument that they are ineligible
for additional pay, provided you did
nothing to prevent or discourage
employees from properly reporting
such work. However, keep in mind that
the normal rule under the FLSA is that
such employees must be paid, but can
be justifiably disciplined for violating
the policy. Repeated violations could
ultimately support termination for
failure to follow the policy.
Off-the-clock work and
authorized overtime-only policies,
like all workplace policies, should be
periodically updated. They should be
conspicuously posted in the workplace
as well as included in employee
handbooks. New employees should
be required to review the policies as
part of orientation. Employers should
also consider training supervisors and
managers on what constitutes off-theclock work.
Having the recommended policies
in place and training supervisors is
not a guarantee that off-the-clock
work claims will not arise in the
workplace. They will allow companies
to defend against one of today's most
frequently filed wage and hour claims,
and hopefully help avoid expensive
overtime liability and litigation.
RICHARD ALANIZ | meatpoultr y@sosland.com

In today's technologically advanced workplace, it has
become increasingly difficult to avoid off-the-clock work.

www.meatpoultry.com | 04.18 | MEAT+ POULTRY

89
http://www.meatpoultry.com
Meat+Poultry - April 2018

Table of Contents for the Digital Edition of Meat+Poultry - April 2018
