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November 19, 2010
Curbing Unauthorized Overtime

In a BLR webinar entitled "Overtime: Legal Strategies for Whittling Down Your Payouts Without Breaking the Law," Harold (Hal) M. Brody, Esq., partner, and Fredric C. Leffler, Esq., Senior Counsel in the Labor and Employment Law Department of Proskauer Rose LLP explained the relationship between workweek scheduling and potential overtime entitlements:

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  • A workweek is any seven consecutive 24-hour periods starting on the same calendar each week
  • Unless specifically designated otherwise, a workweek is Sunday through Saturday
  • Under the Fair Labor Standards Act (FLSA), generally, working a sixth or seventh day is subject to the usual federal law overtime rules -- time and one-half pay for all hours in excess of 40-hour week. State law may vary and California is one example of this

There are some concepts to understand in order to curb unnecessary overtime:

  • For an employee to be entitled to be paid for overtime, work need not necessarily be authorized
  • So long as the employer "suffers or permits" the work, the employee is entitled to be paid
  • So have a policy that specifically requires supervisor approval for the employee may work overtime
  • Enforce the policy
  • Discipline employers who fail to abide by the policy

It's important to accurately track and report hours worked:

  • No particular type of time-recording system is required -- but the need to maintain accurate records is critical
  • Employees must be compensated for all hours worked; the employer may not use rough estimates or arbitrary formulas to compute hours worked:
    • Employees may record time worked starting or stopping time to the nearest five minutes, nearest one-tenth (six minutes) or quarter of an hour
    • The employer must ensure that the employees suffer no disadvantage in terms of compensation they receive from hours actually worked
  • Insubstantial or insignificant periods of time worked that cannot be recorded by the employer as a practical administrative matter may be disregarded
  • Typically only applies to periods of time of a few seconds or minutes
  • The employer is prohibited from arbitrarily failing to count as hours worked any practically ascertainable time, no matter how small

Harold (Hal) M. Brody, Esq. is a partner in the Labor & Employment Law Department with Proskauer Rose LLP ( His practice is characterized by its diversity and he has represented employers in virtually every facet of labor and employment law. Fredric C. Leffler, Esq. is a Senior Counsel in the Labor & Employment Law Department and co-head of the Employment Law Counseling and Training Group. He represents major private and not-for-profit employers in all aspects of labor and employment law.

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