Denying Unauthorized Overtime Can Prove Costly

Today’s FLSA Question: I am a fire chief. I recently had a lieutenant work past the end of his shift and submit an overtime request without authorization. I denied his request for overtime and reminded him that all non-emergency overtime must be pre-approved in advance. Now, the union has filed a grievance and the lieutenant is saying he may institute a lawsuit to get paid. The city’s attorney instructed us to pay the overtime and pay it quickly. This is crazy, what good is having a policy requiring per-approval of non-emergency overtime, if employees can receive overtime without approval… I have to be able to control overtime costs… This makes no sense to me. Is the city’s attorney correct?

Answer: Chief, the city attorney is absolutely correct. The FLSA requires employees be paid for all hours worked, even hours that management did not want the employee to work. While it may seem counter-intuitive to be required to pay for work that you did not want performed, the FLSA requires it.

Unfortunately, by denying the overtime you may have opened yourself up to even more liability than just back wages. You may have exposed the city—and yourself—to an FLSA retaliation claim as well. This is probably why the city’s attorney wants the lieutenant paid “quickly”.

The FLSA contains broad anti-retaliation provisions aimed at preventing employers from retaliating or otherwise discriminating against employees for exercising their rights guaranteed under the FLSA. In extreme instances, FLSA anti-retaliation provisions allow employees to recover punitive damages from both the employer and the actual individual or individuals that may be responsible for the retaliatory actions. These damages would be in addition to back wages, liquidated damages, and attorneys’ fees which are standard in all successful FLSA claims.

Luckily, I do not think the circumstances that you describe would lead to any of those extreme possibilities. However, moving forward it is important to realize enforcing policies on wage and hour matters requires a slightly different approach than many of our other rules and regulations.

As an employer, you can have policies that require employees seek approval before working overtime. You can discipline employees for failing to follow departmental policies, including policies related to pre-approval of overtime, however under no circumstances should an employer withhold the payment of wages for failing to follow departmental policies.