FLSA – Suffer & Permit Overtime

Hey, Dustin Pascall again with Simon Pascall PLLC with our video tip of the week again. Today we’re going to talk about the concept of suffer and permit under the Fair Labor Standards Act, especially when it comes to overtime compensation, overtime hours worked. Suffer and permit, you can think of it in terms of require and/or allow. If an employer requires an employee to work overtime hours, that employer must pay the employee overtime compensation at the rate of time and one half of their regular hourly rate if they are a nonexempt employee. That’s an easy one, people understand that, people get that. There’s some different things here and there in the law that we’ll talk about in other videos that come into play, but people get that as a general concept.

The one I want to focus on is permit, which is the allows. It’s something that people might not think about. If you’ve got a situation where you’ve got an employee that’s non-exempt that works from 8:00 to 5:00, they clock in every morning at 8:00, clock out at 5:00. As you’re coming into the office, you notice it’s 7:45, it’s 7:50, and that employee is already on the line working. You go back and look and see if they’ve clocked in early. That’s going to be considered allowing. You may not have known it right then, but if you allow that behavior to continue, you are permitting the employee to work overtime and you must pay that employee overtime compensation.

That arises in the concept of not just you as an HR professional, or you as a business owner, but your managers. If your managers are aware of that kind of behavior, they have to stop that kind of behavior. We always tell our clients, you can discipline an employee for violating a policy. Because a lot of a lot of clients will say, “Well, I have a policy that says you cannot work overtime unless you receive approval.” That’s fine, that’s a good policy to have, and every employer should have that policy. The issue is you still have to pay the employee their overtime compensation, even if that employee violates the policy. You can discipline that employee for violation of the policy and you can even terminate that employee for violation of the policy, but you must pay the employee for that time. Those situations where you’re aware of it, that’s where that permit comes into play. That’s why people have a policy that prohibits it and then train your managers on recognizing when an employee is violating that policy and bringing that violation to a halt.

There’s your video tip of the week. Thanks!


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