5th Circuit says no way, no how to off-the-clock work

The U.S. 5th Circuit Court of Appeals (the federal appeals court covering Texas) recently issued an opinion warning Texas employers of the dangers of allowing employees to work off the clock. Forewarned is forearmed. Read on.

Typical tale

Business was good—too good. Patriot Erectors was on a roll. Orders were flowing in. Patriot relied heavily on its “production manager” Robert White, though it appeared the company didn’t treat him as an exempt employee. He was working a lot, answering emails after his shift was over to the tune of 250 a day for the last two years of his employment (yes, you read that correctly).

When Patriot opened a new facility, White lived in a company-owned trailer near the facility. He was ultimately terminated, although the court’s opinion doesn’t say why. He sued for unpaid overtime, won at trial, and Patriot appealed.

The appeals court upheld the decision of the lower court, rejecting all three of the company’s arguments.

You’re out!

Argument No. 1: We never told him not to record his time, so we win! On the facts of the case, this doesn’t matter. Here’s when it does: when the employer issues a policy requiring all employees to accurately report their time worked and prohibits employees from working overtime without prior approval. Strike one!