It’s illegal to allow hourly employees to work for free

DEAR J.T. & DALE: Our company has a strict “no overtime” rule; they don’t want to pay for it. Recently, a colleague who started around the same time I did just got promoted. When I asked how she did it, she told me she had been putting in extra hours on her own time over the past year and that her boss wanted to reward her. Is that legal? It seems wrong if the only way to get promoted is by working for free. — Marcy

Dale: It does seem wrong, Marcy, but as for the legalities involved, we turn once again to our favorite employment attorney, Scott Gordon, of Rodey Law in Albuquerque.

Scott: It is illegal for an employer to allow an hourly employee to work for free. An employer is allowed to have a strict “no overtime” rule, but simply having a rule is not enough: If the employer knows or even suspects that hourly employees are breaking the rule by working “off the clock,” the employer must pay for the work that was done. If an employer actually encouraged an hourly employee to work for free — straight time or overtime — the employer would be in big trouble with the Department of Labor. In this situation, under federal law, the employer owes the employee time-and-a-half for every hour over 40 worked in every workweek since she started work a year ago, plus additional damages in the same amount. This employer needs a good lawyer.

J.T.: Thanks, Scott. However, while forcing someone to work overtime without pay is illegal, in this case it sounds like the employee took it upon herself to invest her personal time into getting ahead and standing out on the job. There’s nothing illegal about that.

Dale: Well, Scott’s point is that it’s illegal for the company to allow it. And if management is “rewarding” the employee, then they were aware. Bang. Guilty.

J.T.: Yes, there are times when an ambitious employee sometimes needs to go the extra mile to get the skills and experience necessary to move up. My guess is that this woman asked her boss what level of proficiency she needed to get to in order to receive a promotion, and then she set out on a course to get it. If you, Marcy, don’t want to spend your free time developing your skills, that’s OK. It just might take you longer to get

promoted. Dale: Oh, that hurts. Mark this down as the day J.T. went over to the dark side.

J.T.: Not so fast. Would it help if we called it “selfimprovement?”

Dale: Yes, if it’s something like working on an MBA. Further, let’s be clear that there are other ways to stand out. Be the person who has the best ideas (especially about saving money or helping customers) or is the most productive during regular hours, then use that reputation to go to a company with some standards and some class.

Dear J.T. & Dale: My company offers a lot of perks: free food, dry cleaning, pet sitting and other things. However,

I know for a fact I’m paid below market rate. I don’t use the perks, and would really rather have the money. Is there a way to tactfully approach this with my boss? — Graham

Dale: There is no doubt that your management is proud of those perks and warmly embraces them as part of the company’s culture. To reject the perks is to reject the culture, and, by extension, the personality of the owners. So, NO!

J.T.: Agreed: You can’t say, “I’d like cash instead of perks.” Instead, I’d sit down with your boss and say: “I really need to earn more money, and was hoping you could map out a game plan so I can add more value in order to get a raise. Is this something we can work on together?” This way, you partner with your boss to ensure that the raise is justified. Now, if your boss says there is nothing he or she can do to help you earn more money, then you know that you’ll need to seek a different employer who offers higher pay instead of perks.