Employees must be paid for all of their work. But what happens when employees work at home, or at night and on weekends, and don’t tell anyone?
The answer is that the law requires employers to pay for any work they “suffer or permit” to occur. So, whether employers must pay depends on whether they should have known the work was being done.
- “The words ‘suffer and ‘permit’ as used in the statute means with the knowledge of the employer,” explains Fox v. Summit King (9th Cir. 1944).
“However, where an employer has no knowledge that an employee is engaging in overtime work and that employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer’s failure to pay for the overtime hours is not a violation,” says Forrester v. Roth’s (9th Cir. 1981).
Thus, to collect for undisclosed work:
- “an employee must prove (1) he worked overtime hours without compensation; (2) the amount and extent of the overtime work as a matter of just and reasonable inference; and (3) the employer had actual or constructive knowledge of the overtime work,” says Miller v. Blumenthal Mills (SC CtApp 2005) citing Davis v. Food Lion (4th Cir. 1986) and Lyle v. Food Lion (4th Cir. 1992).