I have often warned clients that simply having a policy against working unauthorized overtime does not immunize an employer against a successful lawsuit claiming payment for off-the-clock work.  A recent case (yet again) proves this maxim.

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An appellate court has now held that a group of nurses working for the US Department of Veterans Affairs need not have been “expressly directed” to work overtime in order for them to receive overtime compensation.   The case is entitled Mercier v. United States and issued from the Federal Circuit Court of Appeals.

The nurses alleged that the VA required them to work overtime by imposing increased scrutiny, including a greater risk of discipline, on those who would not work.  The nurses claimed that the VA knew the nurses were working overtime “on a recurring and involuntary basis.”  The Federal Circuit concluded the work could be considered “officially ordered and approved,” as required by the statute and that the nurses had been “induced” to work overtime, but then the agency avoided paying for the overtime by contending that the work had not been ordered or approved. Thus, the Court concluded that work that was “induced” but not specifically required was nonetheless “ordered or approved.”

The Court succinctly stated that “we therefore hold that Anderson’s interpretation of [the Federal Employee Pay Act], namely that overtime is ‘officially ordered or approved’ where it is induced by one with the authority to order or approve overtime but not expressly directed, remains good law.”

The plaintiffs stated that the overtime was necessary to discharge the tasks known as “View Alerts,” which were described as time-sensitive requests for information related to patient care.  They contended that their supervisors, who had the power to order or approve the overtime, required the extra work and then threatened them with more enhanced scrutiny and the threat of disciplinary action.

The Takeaway

Employers cannot condone employees working or making the employees believe that they must perform certain tasks and then defend an overtime claim by asserting the “I did not order it” defense.  That is the essence of “suffering and permitting” work to be done and then seeking to avoid paying for it.

If employees believe they will be disciplined or can reasonably face discipline if they do not perform the off-the-clock work and the activity at issue is sufficiently connected to the job, then the activity will be considered “work” for which compensation is owed.