At our Company all overtime must be pre-approved by an employee’s supervisor. I have an employee who advised me that he worked overtime on a particular day. He did not seek prior approval for this work, and would not have been granted authorization to perform it if he had. Do I need to pay this employee the overtime pay?
This is a very common situation that employers face. The answer is also very clear. Employers must pay employees for all work “suffered or permitted.” That means if an employee performs work, the employee is entitled to the pay for such work, including overtime pay, even if the employer did not authorize or approve the work being performed. As long as the work was “suffered” (i.e. the employer received work from the employee), the employee is entitled to the pay for his work. It makes no difference that the employer did not approve such work.
An employer can take steps to reduce these situations from occurring. An employer can issue a policy that provides that any non-exempt employee who works without prior approval will be subject to discipline. An employer may also discipline an employee for refusing to obtain prior approval of such work. The threat and/or actual issuance of discipline often deters employees from working without approval. The bottom line: the employer must pay for the work, but can discipline the employee for failing to obtain prior approval to perform the work.
For more information, please contact Mitchell W. Quick, a partner in Michael Best's Labor and Employment Relations Practice Group at 414.225.2755, or by e-mail at email@example.com.