Over the last month or so I have done several interviews on the advisability of “furloughs” in the private sector, which inevitably leads to a discussion of the Fair Labor Standards Act.  As a general rule it is easy to deal with time off when we are talking about hourly employees.  If they don’t work, they don’t get paid.  Of course we have developed a bunch of programs over time to help hourly employees who have to miss time for good reasons like sickness, or funeral leave or jury duty.  But the general rule still applies, if you are an hourly employee you don’t get paid unless you are working. 

Now, some employers have taken this “you don’t get paid unless you are working” thing to another level and suggested that hourly employees don’t get paid unless the employer makes them or asks them to work.  You know what I’m talking about right?  Some manager saying “I’m not paying him for that overtime, I didn’t authorize that!”  Or “Sure, you can come in early and get that done, but you are not getting paid for it.”  Wait, wait, wait.  Is that right?  We all know it isn’t. (We all know you can’t do that don’t we?)  Under the FLSA an employee has to be paid for any time that the employer “suffers or permits” him to work.  The Department of Labor says: 

The FLSA defines the term “employ” to include the words “suffer or permit to work”. Suffer or permit to work means that if an employer requires or allows employees to work, the time spent is generally hours worked. Thus, time spent doing work not requested by the employer, but still allowed, is generally hours worked, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done. (The underlining is mine).


In the old days, this was not really that hard to police.  “Mary is at her desk after hours, Mary must be working extra, did I authorize that overtime?” 


Not so much anymore.  “Mary is at home, Mary’s laptop is not on her desk, I wonder if Mary is working?”  Or how about getting a response at midnight to an email you sent about the “SMITH FILE” (I put that all in caps so it would sound IMPORTANT when you read it) from Bill’s iPhone.  Well, if you “know or have reason to know” that Mary, or Bill or any other hourly person is say, oh, I don’t know?  Answering work emails at home “off the clock” you have to pay them for that time spent working. 


But wait, you say, the budget is tight and I can’t afford that.  Sorry, too bad.  So what do you do?  Well, if you want Mary to stop working when she is not supposed to, you pay Mary and discipline her.  That’s right, you get to discipline an employee who is so conscientious that she is working at night to keep up in these hard economic times.  Does that make any sense?  Of course not, but don’t forget we are working with a law that was written in the 30s.  Until it is changed, sorry, that is your only recourse. 

Of course you could take away Mary’s Blackberry and iPhone and laptop?  Oh my!