HRGuru

I think that the answer to this one is to regulate what will and will not be paid for.  An employee should never be allowed to decide for himself that he is going to work overtime from his Bluetooth or computer at home and then just bill the company for it.  This should be regulated under strict overtime policies, and should only be paid if the company authorizes it in advance.  Work that can't wait and must be attended to at once would be something that the management would be aware of.  Everything else should fall under the topic of "it can wait until tomorrow" and be left until then.

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with Sarah on this one. If there is a question raised you need to address it in the company policy immediately. Salaries should reflect, represent and compensate the time involved with "after hours" work by an exempt Ee if it is essential to the company's success. At no time should they be allowed to choose when OT takes place. I think it is assumed for the most part that these things are part of the job but all it takes is for someone to challenge the norm.

Yes, as srtoady said, I think this quickly becomes a legal issue - you can set policies, but if an employee logs on after hours to do blackberry work anyway, isn't he or she still working?

a company must pay overtime even if the time was not authorized.  otherwise companies could set up a culture of not authorizing overtime but giving the employee a work load they can not complete during regular hours, but they expect the workers to work for free to get the job done.  If the employee suffers or is allowed to suffer to work then they must be paid.  check with your lawyer before you do not pay unauthorized overtime.  it will cost you dearly if you dont't.

You mentioned tribunal so I am guessing you are not in the USA.    In the USA the employee must get paid for anytime they work for the company, authorized or not.  I ahve seen many companies get caught for unpaid wages for when the employee comes in to work early and does work or sits at their desk for lunch and answer emails or the phone and the dept of labor gets wind of it , then the company must pay, not only the amount owed for overtime but also they will pay an additional amount of up to 3 times that.  Each state is different, but the law here says pay them and treat it as a performance issues for not following  company policy.   Below is the defination as use by the US Dept of Labor.

Definition of "Employ"

By statutory definition the term "employ" includes "to suffer or permit to work." The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place. "Workday", in general, means the period between the time on any particular day when such employee commences his/her "principal activity" and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee's scheduled shift, hours, tour of duty, or production line time.

Employees "Suffered or Permitted" to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable.

according to the US dept of Labor you must pay employees for any hour that they work for the benefit of the company whether authorized or not.  the Us dept of Labor does not restrict employers from requiring mandatory overtime and the laws do not protect any employee that refuses to work mandatory overtime.  Depending on which state you work in, the penality can be up to three times the amount you should have paid the employee.  Walmart just got hit (again) for not paying workers.  If you were automatically docking employees for an hour lunch you were in voliation of the law.  If the dept of labor did an audit on your company you would have been guilty of a willful voliation and would be paying more fines.

MINNEAPOLIS (AP) ―

Overtime is strictly regulated and cannot be enforced.  No employee can legally be required to work more than forty hours in a week.  Laws were in place that protected employees from the so-called mandatory overtime, which is what caused the IRS itself to get into trouble over its seasonal workers, as the IRS had considered itself above the law due to the fact that it was a government agency, and I learned this whilst working for the IRS itself.  Though there is no limit over there currently (the new limit here from the European Parliament is 48 hours) as to how much an employee can work voluntarily, it is strictly illegal for an employee to be told that they must work overtime or lose their jobs unless they have signed a form consenting to that, and though I don't at the current moment remember the code of the form, I do remember the form itself very well.  Now, if what is being stated here is that the laws have changed in the last few years to make these things legal, then I would be very disappointed.  I had been pleased at the level of protection that American workers had when I worked there.  It sounds to me as if things aren't that great anymore, and I would hope that I have misunderstood that situation.  We still have the strict laws in place here that protect workers from such things, and these laws are constantly improving, as my recent article brought out.  Surely it's getting better there, as well?   Surely you're not telling me that in the last six years things have changed to such a degree that employees there are subject to such things as this?  I do hope not.  If things have changed this much and in this direction since when I worked there, then I have to say I'm shocked.  Those laws were hard won by many union people and the sacrifices they made to get those laws would be sadly disrespected by the loss of the protection they offered.

Working for the IRS gave me the opportunity to learn alot of things.  There is a law that says that there is absolutely no such thing as mandatory overtime, or at least there was six years ago.  The question here, however, was whether or not an employee who, against company policy and without authorisation, worked on his own time on his blueberry was entitled to overtime pay, and the policies for that are supposed to be clearly marked out in the company policies handbooks, especially regarding the use of personal time and equipment to carry out business.

it does not matter what your company policy states.  Federal law and state laws will override any policy you may have in place.  stating that you will not pay for unautorized overtime will probably get you in more trouble for willful violiation.

The bottom line is if your employee works for you in any way, shape , or form, pay them.

Walmart just settled for 640 million dollars to settle 63 class action law suits for not paying their employees overtime pay. And they still have more class action suits waiting.  If your company policy states that you will not pay for unauthorized overtime, you will get yourself in more trouble.  The DOL and the courts will view this as a willful violiation of the law.  You blatently setup a policy that is against the law.  Expect to see a few dollars added to your fine for that one.  That is why it is important to make sure you company policies follow the law.  What your policy should state is that employees are must have authorization to work overtime.  Failure to obtain authorization for overtime can lead to corrective action up to and including termination. Now if an employee works overtime that is not authorized you can do something about it, but you still must pay them for the time they worked.  Please check out the US department of labor website.  They are quite clear on what the employee must get pay and on mandatory overtime. Every year a local law firm puts on a seminar on the top ten wage voilitions in NH and every year not paying employees for overtime is the number one issue. why because most companies think they do not have to pay people because their company policy clearly states so.    Think about it, 640 million dollars, that is a lot of money.

so you are saying that if my company policy states that the company will not pay for unauthorized overtime that you do not have to pay the employees and the company can not require you to work overtime?

again I will post from the US Department of Labor website:

"Employees "Suffered or Permitted" to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable."

If that is not clear enough to state the you must pay the employee regardless of the reason then I do not know how to convince you.

also fro the website on mandatory overtime

"Also, FLSA does not limit the number of hours in a day or days in a week an employee may be required or scheduled to work, including overtime hours, if the employee is at least 16 years old."

Now I will turn to the original question about blackberry use.  Why would your hourly employees have to have a blackberry. I can understand if they are travelling for the company and need to keep in touch but why else.  Because it is too hard to track when employee use their blackberry and when to pay, I would never allow an hourly employee a blackberry.  the fact that they are hourly gives the feeling that they are not in a position that would require them to be in constant contact for the company.

If you have ever been involved in a dept of labor audit of hours worked or a lawsuit, the lawyers or dept of labor will get the hours worked from the employee and it is your job, as a company, to prove that the employee did not work those hours.  Not an easy task and when you add blackberry useage, makes it more difficult. usually it is only one employee that has made the complaint, but if your defense is your company policy states that you do not pay for authorized overtime, the dept of labor or the lawyer will turn it into a class action and go after you for every last employee.

I agree with Ahmedmaher: where are the rest the HR world and their input. Don't be shy, it is a issus that every company faces and there should be more of you out there with input either way

I would suggest before anybody refuses to pay an employee for unauthorized overtime, they call their local dept of labor or a lawyer first

I am familiar with the four 12-hour shifts, which are agreed upon by the employee before taking the job, which is taken as described.  However, that is different from an employer taking an employee who was hired to work forty hours a week and then trying to force him to work 48.  So, there is no mandatory overtime.  The 12-hour shiftwork is consented to by the employee beforehand, it is not forced on the employee later on, making it mandatory.  The employee has the choice of not accepting the job to begin with when it is described to him as involving four 12-hour shifts, which means by consent.  Even from a business perspective, it would make more sense for an employer to hire four eight-hour shifts than to pay over-time or double-time for one shift to work three or four stretches, which is why they usually do.  So, there is no endless supply of overtime to worry about.  In fact, Safeway had a strike not too many years ago because the company wasn't providing enough overtime hours, not because they were being forced to work overtime.

I'm also quite familiar with the law which says that employees must be paid for work performed.  However, if an employee goes home and decides on his own that he can use his own computer to do something that he thinks would be a great thing but which the company did not ask him to do, he can not expect the company to pay him for that.  If this were the case, then people would be able to stay at home, do whatever they liked, call it work and then bill the company, which would be required to pay them for it, and everyone would be doing it.  There is a matter of legal interpretation to be considered that would explain it very well.  The fact is that you must have company policies in place that define what is work, what will be accepted as work and what employees will be allowed to do, on or off duty.  I can not say that I ever saw a corporation that I worked for not have such policies in place, and they were rigorously enforced.  Policy books which clearly spell these things out legally will hold up in court, and the wayward employee will not get the money.  Now, these cases where employee policies were not clearly spelled out are more often than not settled out of court without admission of wrongdoing simply because it is cheaper to settle than to pay your lawyer to wrangle endlessly with another lawyer over the legal symantics.  This doesn't mean that the law insisted that the employee be paid, it means that the fight was more costly than it was worth, so it was settled.  The time to consult an employment lawyer is when you're writing your policies so that the legal language will hold up in court.

Sadly, many people do win cases simply because it's easier to settle out of court than to fight, even if you're in the right.  But the company does have the legal right to define work.  If an employee does something from home, of their own volition, it is not the company's obligation to accept it as work.  If they accept it and have benefited from it, then of course they have to pay.  If they do not accept it and do not benefit from it, which both parties would have to prove, then they are not obligated to pay.  Gross violations of policy can carry an immediate termination without warning, as we all know, and it's important to note that just because the employee refuses to sign the written warning doesn't mean it isn't effective.  The manager has an option which allows her/him to still include it in the employee's file, along with the note "employee refused to sign", which will only go against the employee in the end, as that can be brought out as well.  Even though employees have hard-won rights, it is important to note that employers have rights, as well.  Overtime is strictly regulated so that neither employers nor employees can abuse it, and really, it isn't worth it to the employee to work a little overtime and then lose his job, so if these things are legally spelled out in the policies, there will be no problem, nor would there be any extensive time spent in court.  Even if the company chose to settle rather than pay for a protracted court battle, the employee could be issued the settlement with his final pay packet.  Since the next employer would have the right to have it disclosed if there had been such actions taken by previous employers, the employee might then find it rather difficult to find work again.  When things are legally spelled out and the employees are all aware that these things will be strictly enforced, problems become few and far between. 

You are exactly right.  They do make a very big mistake in the way they define the hours for salary and exempt employees.  Even though there is more expectation of exempt employees in terms of working hours, this can easily be carried to the extreme, and there comes a time when even the most devoted of employees must set limits.  I agree that there needs to be a much clearer understanding of what exempt actually means in terms of hours.  If an exempt employee works too many hours, they are eventually in danger of actually working for less than minimum wage per hour, which isn't fair, and isn't even the letter of the law regarding exempt employees, never mind the spirit.  I've seen that one taken too far many times, and those employees are right to take these matters on in court.