Observations on Wage and Hour "Protections"

Welcome to HR Esq. As an experienced labor and employment lawyer representing businesses for many years, I hope to bring you a perspective on the legal aspects of human resource management and information regarding new laws in the pipeline. Addressing employment law issues seems to be running a close second to the economic crisis for our federal government. I welcome your feedback and suggestions of areas to address.

In the midst of these challenging times, I have seen news stories praising the efforts of employees to assist and pitch in, and advice columns recommending ways for employees to stand out and lessen the likelihood of getting laid off. There appears to be a disconnect, however, between what could appear, on the surface, to be good ideas on the one hand, and the requirements of the U.S. wage and hour laws on the other. It makes one wonder whether the economic crisis might demand a review of the old standards…or whether other factors should be taken into consideration.

Take the restaurant that was floundering and the employees who volunteered to each work a shift without pay to help their boss. This gift was the employees’ idea, and they all contributed happily, and selflessly. The problem is that, legally, the employer cannot "permit" employees to work without compensating them properly under the federal and state wage and hour laws—even during this economic crisis. Even when it is the employees’ idea. Even when it resulted in such a "feel good" news story.

It is likely the law that prohibits employees from volunteering to do that for which they would otherwise be compensated exists to protect employees from employers who would take advantage of such a loophole. While most employers have integrity, there is no question that someone out there would not coerce employees to "volunteer." The black-and-white distinction prevents any abuse of the system…but it also prohibits truly voluntary contribution by willing employees who want to make a difference in an economic crisis.

In another instance, a human resources advice Web site that should have known better gave pointers on how employees can "stand out" and "be recognized" so that they can avoid getting laid off. One suggestion was for employees to arrive early, work through lunch (or take a shortened lunch hour) and be the last to leave. Employees should show that they are dedicated and willing to go above and beyond, and that they are the type of team-player the company cannot afford to lay off. The problem is that many companies set employee schedules keeping in mind the hourly-per-employee cost. Companies usually prohibit their non-exempt employees from clocking in before their start time, from taking shortened lunch breaks and from working extra time without express permission in order to manage overtime hours and overtime pay. Legally, employees who are not exempt from the overtime requirements must be paid for any time they "work," whether before or after hours, or during lunch. Thus, while excellent advice for exempt employees, these same actions could backfire for those classified as non-exempt—and the article did not distinguish. What was likely well-meaning advice could get employees in trouble if they violate policies with regard to working schedules and could cause their employers to pay for unbudgeted overtime hours.

Again, the wage and hour laws exist to ensure that employers do not bully, intimidate or otherwise coerce employees to work extra time without proper compensation. We should never again tolerate the type of abuses that led to the original implementation of our wage and hour laws, yet it could be that in endeavoring to protect the employees, their initiative and desire to contribute and feel part of the team has been thwarted. During this economic crisis, perhaps we should look for ways to allow employees to contribute to corporate growth and progress, while still protecting them from unscrupulous employers.

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