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I have been involved in two cases by a group of non-exempt managers against their employers over the past two years. The cases were remarkably similar but the outcome was just as remarkably different. In both claims, the non-exempt managers, whose duties were almost identical to the job duties of their subordinates felt helpless and frustrated due to having to work far longer hours than 8 hours per day, due to not being allowed to claim overtime hours, and yet at the same time also not being allowed to work off-the clock.
Under the recent case law, this kind of practice of not paying for hours worked but not claimed is unlawful if the employer has actual or "constructive" knowledge of its employee working off the clock.
Interesting enough, I had a friendly conversation with one of the top executives of one of the companies at the end of litigation, which in itself is not a typical experience, and he told me that according to some of his finance people, imposing set expectations while trying to save on payroll expenses by not allowing employees to claim overtime or work off the clock is the only way to make their business profitable or even survive, especially in these economic times. As sympathetic as I was to that argument, I found my co-counsel's argument much more compelling - if the company is unable to do business and be profitable by complying with California labor laws, then it should not operate until it figures some other way to do business, outside of engaging in exploitation of its workforce.
I hope to be involved in more collective actions by employees against the employers who violate wage and hour laws. As cliche as it might sound, being involved in such cases makes me feel like I and my clients truly make a difference by changing the work environment one company at a time.
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