OFF-THE-CLOCK WAGE CLAIMS ON THE RISE

A very recent decision in a federal district court case highlights the risk of off-the-clock wage claims. Andrews v. Weatherproofing Technologies, Inc., C.A. No. 15-11873-TSH (D. Mass Sept. 28, 2017) (Hillman, D.J.). In that case, a Massachusetts roofing contractor employed roofing technicians who inspected and repaired roofing systems that the employer installed for its customers. The technicians were typically in the field during the day and claimed that at night they would complete paperwork related to the day's work.

The technicians sued the employer, claiming that they were owed overtime and straight wages for hours spent at home completing the paperwork. The employer defended the claim asserting that it maintained a policy directing that all hours were compensable, including time spent generating paperwork. The employer also claimed that human resources had never received any written complaints from employees that they had been required to perform off-the-clock work.

For employers, liability for off-the-clock wage claims will arise if the employer had actual or constructive notice that off-the-clock work occurs. In this case, the court declined to dismiss the technicians' claims, pointing out testimony from some of the technicians that they complained verbally about doing paperwork at home and not being paid for that work. Based on this testimony, the court concluded the case would require a trial to resolve.

For employers, the lesson is that vigilance is required to make sure employees cannot plausibly claim that they were allowed or required to work off-the-clock. Simply maintaining a policy-such as the policy in this case requiring employees to document all hours worked-is generally not sufficient to foreclose possible claims. An employer should take steps to affirmatively educate employees that off-the-clock work is not allowed. The risk of employers failing to do so is that these type of claims will continue to be problematic. For more information on this issue or other employment law matters important to your organization, contact PLDO Principal and employment law attorney and litigator, William E. O'Gara at 401-824-5100 or email [email protected]. We welcome your comments, questions and suggestions.

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