Myth No. 1 I pay all my office employees a weekly salary, so I don't have to pay overtime.
Fact: Paying an employee on a salary basis is only one of the requirements you need to satisfy for an employee to be exempt from FLSA overtime requirements. You must also be able to show that the employee's duties are those of an executive, administrative, or professional employee. (Another quick test is to ask yourself this question: "Does the employee primarily work with his head or his hands?" Usually those who work primarily with their head, and who are regularly required to exercise discretion and independent judgment, may be considered for an exemption from the FLSA.)
Myth No. 2 I have a policy that says overtime must be pre-approved by the employee's supervisor. If an employee does not get pre-approval, I don't have to pay overtime.
Fact: You cannot use a policy that says overtime must be approved in advance to deny overtime to an employee who works it and is not exempt. If you want to enforce a policy that overtime must be approved in advance, you must use disciplinary action. You can warn, write up, suspend, or even fire an employee for working overtime without advance approval, but once the overtime is worked, you must pay for it. This also applies to an employee who does not clock-in/clock-out properly.
Myth No. 3 If a non-exempt employee goes to a seminar outside work hours, I do not have to pay for the time.
Fact: Sometimes you do not have to pay for hours spent attending outside seminars, but sometimes you do. Hours spent in training outside regular work hours must be paid for if: (1) the non-exempt employee's supervisor requires that the employee attend, or, although voluntary, (2) the training is under the employer's auspices and is directly related to the employee's current position. You do not need to pay overtime if the employee, on his own initiative, voluntarily attends training to improve his knowledge or skill, even if the training is helpful on his current job. If you pay for the seminar, it is generally going to be considered "hours worked".
Myth No. 4 If a non-exempt employee chooses to eat lunch at her desk and ends up answering the phone a few times, she does not need to be paid for this time.
Fact: To be considered an unpaid break, an employee needs to be completely relieved of duties for at least 30 minutes. If you allow an employee to answer phones while eating lunch, that is paid time regardless of whether the employee chose to eat lunch at her desk.
Myth No. 5 A non-exempt employee regularly works overtime but never puts it on her time sheet. That sure is nice of her.
Fact: An employer is generally required to pay overtime for all hours worked over 40 hours in a workweek. If you have reason to
know that an employee is working overtime; it is no defense that the employee did not record her hours on a time sheet. You must require accurate recording of hours worked and must impose discipline, if necessary, when an employee fails to do so. An employee who decides she wants to be paid for her overtime retroactively (for example, after she quits or is fired for some unrelated reason) can go to the DOL and present her own records or recollections of her hours worked and can recover overtime pay for all of the overtime hours she worked for the last two years (three years in cases of willful violations where the employer knew or should have known that the employee did not qualify for an exemption from the FLSA).
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