Recently a California court held that an employer is not liable to the plaintiff for work the plaintiff performed off-the-clock if there is no evidence that the employer knew about the off-the-clock work. It is well-settled that an employer is only liable for wages for off-the-clock work if the employer had actual or constructive knowledge such work was occurring. Henry Jong v. Kaiser Foundation Health Plan, Inc., illustrates the types of evidence that courts will consider in deciding whether the employer had “knowledge” of off-the-clock work being performed.
The court’s holding was based on several admissions that the plaintiff employee made, including:
– he knew his employer had a policy prohibiting off-the-clock work;
– he was not told that he should perform work off-the-clock;
– he was told that he could work and be paid for overtime hours;
– he never requested approval to work overtime that was denied;
– he was paid for all work hours he recorded, including overtime hours, even when he did not seek pre-approval for the overtime work; and
– he signed a form agreeing not to perform work off-the-clock in accordance with his employer’s policy.
The plaintiff nevertheless argued that his employer had constructive knowledge that he was performing off-the-clock work. This argument was based on the fact that store alarm records revealed that the employee disarmed the alarm prior to the time he recorded beginning work, and that his employer could have compared the alarm records to his time keeping records to figure out he was doing off-the-clock work. The court suggested the standard for constructive knowledge is not whether the employer “could have known” that off-the-clock work was being performed, but rather whether the employer “should” have known about it.
This case is a good reminder of the importance of well-drafted and communicated policies prohibiting off-the-clock work. The right wording and documentation of policies is effective evidence in defeating off-the-clock claims.