My coworker is working off the clock

(MoneyWatch) Dear Evil HR Lady,

I have a coworker who's considerably senior to me. He has a habit of coming in well before he's scheduled to start and starting to work, but not punching in until his actual time. I know this is definitely illegal, and could open our business to some really expensive lawsuits, but I also know that my immediate supervisor definitely is aware of what he does. I'm not sure that whether our general manager does (he's pretty new). We're a pretty small hotel, so the GM is someone I see 3-5 days a week.

Should I bring this up to my general manager or should I consider it 'not my business'? If I should bring it up, do you have any suggestions for how to bring it up in a way that doesn't make it seem like I'm tale-bearing?

As a general rule, I'm a fan of recognizing that it's your supervisor's job to supervise, not yours, and to let problems with coworkers go, unless they affect your work.

This situation is different. Why? Because, as you stated, working off the clock for a non-exempt employee (which is what I assume your coworker is) is illegal. And because your supervisor is aware of it and is not attempting to solve it, your company is open to fines and being required to pay for all that time he has worked.

The fact that the general manager doesn't know won't protect the company in a lawsuit. The supervisor is aware, the employee is not being punished and the paychecks are wrong.

This is what we call a "big problem." And big problems need to be brought up. Now, you run the risk of finding out that the general manager is aware and doesn't care and now you look like a tattle tale. You also run the risk of the general manager coming down hard on your supervisor, who, in turn, will come down hard on you and make your life miserable. Plus, if your coworker gets in trouble, then he may make your life miserable for busting him.

Unfortunately, doing what is right is not always risk free.

But, as to help prevent you from being tormented at work, start with your direct supervisor. Say something like this: "Karen, I know that Bob works several hours off the clock each week. Is the general manager aware of this, because if we're ever audited, or Bob ever decides he wants to be paid for this and reports it to the Department of Labor, the company could be heavily fined. I think the GM should know so he can decide if he wants to continue to allow it."

Some managers are under the impression that as long as they aren't requiring people to work off the clock then off the clock work is okay. It's not. Even if your boss has expressly forbidden you from working off the clock and you do it anyway, your boss is legally required to pay you for your work, including overtime (if applicable.) And, furthermore, while a supervisor may think it's no big deal because, of course, this star employee who cares so much about the business will never, ever, not in a million years complain about not being paid for all hours worked, he may change his tune when something different happens.

Your supervisor may not take to your statement well. She may accuse you of trying to nose in where you shouldn't. Be polite and back off, but state again, "It's putting the company at risk and I think he should know." Then wait and see if the off the clock work stops. If it doesn't, when you see the GM, you can say, "I thought you might want to know that one of the hourly employees frequently works off the clock. I know this is a violation of labor law. I don't want anyone to get in trouble, but I thought you might want to know."

And then your part is done. It doesn't have to be mentioned again, by you. You've notified everyone who needs to be notified and from now on it falls squarely into the "not my problem," camp. Don't bring it up again, not with the coworker, supervisor, GM or other people who work there.

Might there be retaliation against you? Of course. People aren't necessarily made managers because they are fine, upstanding people who want to protect and grow the company. Sometimes, they are made managers precisely because they are people who don't care about violating the law if it saves a few dollars or increasing their power and influence.

Document your discussions with both your supervisor and the GM. Write down what you said, what they said, the date and the time. Keep this document somewhere other than work. If possible, email the documentation to yourself, so that there is a time and date stamp as to when you said it.

I hate that I have to tell you to be prepared for the worst outcome when you are doing something to protect the business that you work for. However, years of experience tell me that bad reactions are possible. So, be prepared for that, but do the right thing and let the general manager know what is going on.

Have a workplace dilemma? Send your questions to [e-mail].

[lsmith21215432]

@William02138- Their standards were the problem, not mine. Giving me a "solution" to work for free is not a solution. As has been pointed out, that is illegal. I was commenting on the fact that employers can basically do whatever they want, without any real significant penalty.

[smartistartist]

I agree that many, many companies do this, and they really should know better because they are truly setting themselves up for a lawsuit... and there are those that will do it until they can no longer get away with it. But, at the same time, I have seen my fair share of employees who are 'dedicated', 'hardworkers', 'overachievers', 'martars for the business', who will come in early or stay late (whether on or off the clock) to show what a hard worker they are in hopes to get noticed and promoted. I guess that can be an admirable trait, but IMHO, they are setting themselves up to be taken advantage of when those extra hours are conveniently 'unnoticed' by the employer. Which is also wrong, because then the company ise STILL setting itself up for a potential lawsuit. Also, when the 'overachieving' attitude is attached (ie: I put SOOOO much into my work it just shows how lazy everyone else is... OR why am I the only one who puts so much into the job?) it can create tension with other staff, etc.

[smartistartist]

Is it a matter of the employer requesting/forcing the employee to work off the clock for FREE increased productivity in such an unstable economy with the threat of termination otherwise? Or is it the employee just being a 'hard worker' and coming in on his own time to work for FREE! Both are wrong, and being a 'hard worker' in vain, without getting paid for it is really not going to ever benefit you in the long run! I agree that it should be dealt with. Either to stop the company from taking advantage of the employee, or the 'hard working' employee taking advantage of the company. By law, he's got to be paid for ALL time he's worked. And if he's just thinking that putting in the extra time to show what a hard worker he is to help boost his position down the road... what happens when someone else gets promoted before him and he feels jilted? This is when the company gets in hot water when he decides to take his list of 'unpaid hours' to the labour board! I agree with the Lawyer that posted, if it's brought to the company's attention, they should pay the employee out for the hours worked & then say clock in when your work BEGINS, and working off the clock is no longer acceptable. Then if the 'hard working' employee continues to do it, further action can be taken against him. Otherwise, if only works his set hours, all is well. I've recently worked with a guy (I'm in HR) who had a habit of trying the same thing. When I confronted him his reason was that he could get so much work done before clocking in (when no one knew he was here), so that he wouldnt have to work so hard while ON the clock! Really, it made no sense whatsoever! And the situation was righted, he was told not to continue, and he became a hard worker WHILE at work, which was noticed, and rewarded!

[khkolb]

Given that the supervisor is aware of the off-the-clock work and is allowing it to continue, the supervisor "is" the problem. Indeed, in a workplace where supervisors are graded/compensated (in whole or in part) on the level of their subdinates' production, the supervisor may be financially incentivized to allow this to continue. I would skip the supervisor and bring the problem to the attention of HR - who knows the financial risks posed by a supervisor allowing/condoning off-the-clock work.
HR will likely: 1) order an audit of the employee's time records which may include interviews of co-workers and the supervisor; 2) determine if the employee incurred any overtime hours; 3) pay him/her the applicable overtime rate for those hours; 4) require re-training for all employees and supervisors on overtime requirements; and 5) discipline the supervisor for allowing the practice to continue and exposing the employer to potentially significant financial liability. Depending on other circumstances, the employer may want to audit the payroll and timekeeping practices on a larger scale to see if the problem is more widespread. Having defended these types of lawsuits across the nation, I can say with confidence that discovering and correcting the problem (before a lawsuit is filed) is infinitely cheaper than burying your head in the sand and waiting for an off-the-clock worker (recently fired or RIF'd) to speak with an attorney and file a class/collective action lawsuit.

[bonadventure100]

I am confused.

It is illegal to voluntarily
work extra hours without pay?

Wow, my grandfather would be rolling over in his grave now if he knew this.

His favorite saying was a little hard work never killed anyone.

[Suzanne Lucas]

It's not exactly illegal to work for free, it's illegal for the company to allow it. They have to pay you for all work done, whether authorized or not. They can fire you for working off the clock, but they must pay first.

[brc53]

I'm sorry.

What business of yours is this?

You're trying to get someone else fired because they work harder than you. Of course, HR lady agrees with you, HR needs people like you to rat on others. Except of course when they want to turn a blind eye to the problem.

Now, if your supervisor comes to you and suggests YOU do the same thing, then call the DOL and blow the whistle. But right now, you're just working to get someone else fired and that's not going to make you look better to your coworkers or your bosses.

[J Stock]

I don't think the motivation is to get someone fired at all. I think it's to keep the company from opening itself to significant liability -- to do what's RIGHT for the company. That probably just means telling the co-worker to not work off-the-clock (either by working fewer hours or clocking in when working)

It's not the letter-writer's responsibility to take any action apart from notifying the right people that it's happening. It would suck if the co-worker got fired for this, especially if the supervisor had previously approved it. But notify, document when/where you notified the appropriate people, and then drop it. Which is what Evil HR Lady said.

[lsmith21215432]

I hate to contradict Evil HR Lady here, but I wouldn't tell. I have worked for SO many places where people do this, where this is the norm, and have done this myself. This is a result of employers being able to conduct themselves however they want in this terrible economy where they constantly and consistently take advantage of employees. My managers have told me I'm not being productive enough, I'm not getting enough done-- my only solution if I want to keep my job is to work off the clock. I'm willing to bet your co-worker is in this situation as well. I don't know what the answer is. It's so sad that employers are allowed to act this way. Because I mean really, if he sues, then employers for the rest of his life will know he was involved in some sort of lawsuit and will be hesitant (or just flat out refuse) to hire him.

[william02138]

So... you weren't being productive enough, not getting enough done, and they offered you a solution that allowed you to keep your job. Do you wish they hadn't offered you that solution?

[dman6015]

Why put your job in jeopardy if shenanigans are going on at the workplace? Just report it to the Dept. of Labor and let them handle it. You get to keep your job (as long as they're not put out of business by the fines/back pay) and those who should be let go are let go.