Skip to comments.Forced to Work Off the Clock, Some Fight Back
Posted on 11/18/2004 8:03:56 PM PST by Tumbleweed_Connection
Soon after Trudy LeBlue began working at the new SmartStyle hair salon outside New Orleans, her salon manager began worrying that business was too slow and profits were too weak.
To keep costs down, Ms. LeBlue said, the manager often ordered her and the two other stylists to engage in a practice, long hidden, that appears to have spread to many companies - working off the clock.
Many weeks, Ms. LeBlue spent 40 hours in the salon, but was ordered to clock out for 20 of them while waiting for customers to show up, she said. During the unpaid stretches, she was told to clean up and stock merchandise.
"If you weren't doing hair or a perm, they'd tell you to get off the clock, but you still had to stay in the salon," she said.
What angered her most was her paltry paycheck, which she said often came to just $200 for two weeks, even after 80 hours at work. For Ms. LeBlue, that worked out to $2.50 an hour, less than half of the $5.15-an-hour federal minimum wage and her official rate, $5.35 an hour.
Workers at hair salons, supermarkets, restaurants, discount stores, call centers, car washes and other businesses who have murmured only to one another about off-the-clock work are now speaking up and documenting the illegal practice.
In interviews and in affidavits supporting employee lawsuits, Ms. LeBlue and more than 50 workers from a dozen companies said they were required to do such unpaid work despite federal and state laws that prohibit it and despite recent lawsuits against Wal-Mart and other companies that have highlighted the problem.
"It is prevalent," said Alfred Robinson, director of the wage and hour division of the Labor Department. "It is one of the more common violations of the Fair Labor Standards Act."
Though there have been no formal studies of the practice or of its overall cost to employees, the workers interviewed said off-the-clock work took place at a variety of companies: A&P, J. P. Morgan Chase, Pep Boys, Ryan's Family Steakhouses, TGF Precision HairCutters and Ms. LeBlue's company, SmartStyle, which is part of the Regis Corporation, the nation's largest chain of hairstylists. SmartStyle and many of the other companies say they bar off-the-clock work, and they are fighting the lawsuits.
Over the last year, the Labor Department has brought enforcement actions against several companies that required off-the-clock work, seeking back pay and demanding compliance. The agency has grown more aggressive after plaintiffs' lawyers filed scores of off-the-clock lawsuits, some resulting in multimillion-dollar settlements with prominent companies, including Radio Shack and Starbucks.
In April, the Pleasantview Healthcare Center of Bolivar, Tenn., paid $44,887 in back wages after the Labor Department found off-the-clock violations involving 41 employees - many of them clocked out while finishing their daily tasks. In February, the department recovered $180,000 from the Hanna Steel Corporation after finding that 522 employees had been forced for months to begin work five minutes before their regular shifts started.
Last November, the Labor Department announced a $4.8 million back-wages settlement with T-Mobile, the wireless telephone company, after finding that it had forced 20,500 call-center employees to work off the clock by making them show up 10 to 15 minutes before their scheduled clock-in time.
Employees Fear Retribution
Off-the-clock work can take many forms. Employees are sometimes told that it is the way people advance in a company, and other times they are forced to show up early or stay late under threat of losing their jobs.
Although many employees fear retribution, a number of workers said they were now willing to talk because they were angry and involved in lawsuits seeking back pay.
Waylon Pastorius, a TeleTech call-center worker in Niagara Falls, N.Y., said he was required to arrive 15 minutes before each shift began, but was not paid for that time. Sharon Djafaripour said she was instructed to record only eight hours of work a day even though she regularly worked nine and a half making crowns, bridges and other dental devices at MicroDental laboratory in Dublin, Calif. Vicky Atchley, who worked for eight years as a waitress at Ryan's Family Steakhouses in Chattanooga, Tenn., said managers often clocked her out during her lunch breaks even when she had to work through them because the restaurant was so busy. They have all sued their companies for back pay.
Executives at SmartStyle say the company prohibits off-the-clock work and seeks to prevent it. Denise Drake, a lawyer for SmartStyle, said just three cases of unpaid work had been brought to the attention of senior executives. "SmartStyle is strongly committed to properly paying its employees," she said. "The company has consistently insisted that employees track and be paid for all of the time they work."
A&P and TGF did not respond to numerous phone calls, while Ryan's and Pep Boys denied they force people to work off the clock and said they punish managers who require such work. Last year, MicroDental agreed to pay $1.3 million to settle a lawsuit over off-the clock work while continuing to deny that it demanded such work.
Many people who study business practices say off-the-clock work has become more prevalent because middle managers face greater pressure to lower labor costs and because the managers' bonuses may even be tied to cutting those costs. Off-the-clock work is most often found, they say, at workplaces that employ many immigrants, like farms and poultry-processing plants, but the phenomenon has spread, especially among low-wage companies in the service sector.
"There's more of this stuff going on than 10 and 20 and especially 30 and 40 years ago," said David Lewin, a human resources professor at the Anderson School of Management at the University of California, Los Angeles. "There are a lot of incentives to engage in these kinds of practices, because they result in higher profits for the company and they can lead to higher bonuses for local managers."
Federal and state laws generally require that hourly employees be paid for every minute they work, meaning that when there is a time clock, workers should be clocked in whenever they are working. Salaried workers in administrative, executive and professional jobs are often exempt from overtime, however, and the law does not require anyone to keep track of their hours.
Unlike factory workers, many hourly employees work where there are no time clocks and the situation is somewhat fluid. For example, an employee might work two hours past the end of a normal shift without putting in for overtime pay one night, but arrive two hours late on another morning because of a parent-teacher conference. In such settings, employers may easily wring out extra hours from their workers.
Many corporate officials and lawyers deny that off-the-clock work is prevalent. Companies often assert that senior executives knew nothing about unpaid work and that lower-level managers were responsible.
"The amount of off-the-clock work is significantly lower than the plaintiffs' bar would lead you to believe," said Joel Cohn, a lawyer who has represented Wal-Mart and many other companies on labor matters. "There are certainly cases where individuals have worked off the clock, but it's not with the knowledge or approval of the employer."
Executives at many companies acknowledge that their policies encourage store managers to cut costs, but they insist those policies in no way encourage off-the-clock work. These companies say they repeatedly tell managers to comply with the law and to make sure employees record all hours worked.
Steven Drapkin, a lawyer for the Employers Group, an association of 5,000 companies, said, "In most cases, the allegations you hear about involve individual managers who are acting to enhance the profitability of their own units, rather than reflecting any companywide practices or policies."
But plaintiffs' lawyers assert that many companies have adopted policies that they know or should know will encourage off-the-clock work. Some managers receive bigger bonuses for cutting labor costs deeply or are threatened with dismissal if they exceed payroll targets.
Adam T. Klein, a lawyer who has brought off-the-clock lawsuits against A&P and J. P. Morgan Chase, said many companies pushed for such unpaid work because it is an easy way to bolster profits.
Working for the Bottom Line
"Corporate profits are derived from efficiency, and every extra minute off the clock they can squeeze out of a worker generates profits to the bottom line," he said. "Some companies have even institutionalized the notion that preshift and postshift work doesn't have to be compensated."
Eileen Appelbaum, director of the Center for Women and Work at Rutgers University and an editor of "Low-Wage America," a book of essays about the workplace, said more people work off the clock because job insecurity makes them increasingly eager to please management.
"One big reason for off-the-clock work is people are really worried about their jobs," she said.
Barbara Parkinson, who retired from J. P. Morgan Chase after 21 years, said that from 1998 to 2002, she faced tremendous pressures to work off the clock. Ms. Parkinson, who was a customer service representative in the global investment services department in Brooklyn, said managers had repeatedly complained and reprimanded workers when they submitted time sheets with overtime.
"You didn't want to look bad, so you would work extra hours and not record it," she said. "You wouldn't be compensated for it. It was a bad situation."
She said she typically worked from 8 a.m. to 7 p.m., but to avoid reprimands, she often wrote on her time sheet that she had left at 5:30, shortchanging herself of 90 minutes' overtime. Ms. Parkinson, a plaintiff in a lawsuit against J. P. Morgan Chase, said her managers knew about this illegal practice, but turned a blind eye because it helped their units get more work done within budget.
"They never said it was wrong," she said. "They were glad about this because it made them look good."
Judith B. Miller, a spokeswoman for the bank, said, "J. P. Morgan Chase pays its employees in full compliance with the law."
Managers often persuade their subordinates to work off the clock by promising promotions and other rewards or by threatening those who refuse with demotions or fewer paid hours, say professors who study business and labor practices.
Wilfredo Brewster said he frequently worked from 6 a.m. to 6 p.m., sometimes even to 10:30 p.m., as the customer service manager at an A&P supermarket in Greenburgh, N.Y. He said he sometimes worked all day Saturday without clocking in at all.
He described a mixture of coaxing and pressure by the store manager, who said he should show his loyalty to A&P by clocking no more than 40 hours a week, even when he worked 70 hours or more.
"When I start working at the company, they give me an opportunity," said Mr. Brewster, an immigrant from Panama. "These guys say, 'You could be a store manager some day.' But my friends said: 'You're crazy. Why are you doing this?' I said, 'I'm being loyal to my company.' "
Mr. Brewster said that when he was not promoted to store manager after working hundreds of hours off the clock, he felt betrayed and quit.
"They used me," he said.
Employees and managers at many call centers say off-the-clock work is endemic. Rosemarie Russell, who worked from September 2002 through February 2004 at a center in Niagara Falls that handles queries and complaints for Verizon Wireless, said the center's 200 customer service representatives were required to show up 15 minutes before their shift began and to complete paperwork after their shift ended.
Ms. Russell said managers at the center, run by TeleTech Holding, ordered everyone to arrive early to start their computers and software so they could begin taking calls the second their shift began.
"No one likes working off the clock, especially not 20 minutes a day," Ms. Russell said. "A lot of people complained to supervisors and site directors, but they'd just say, 'If you worked at a Burger King, you'd be required to show up in your uniform fully ready to work.' They considered the computer to be like our uniform."
Ms. Russell said she had considered, then ruled out, complaining to government officials, fearing retaliation by her bosses.
"I'm a single mom," she said. "I can't afford to be fired. I don't know if you've ever been in western New York, but it's the type of place where if you don't have a master's degree, all it is is Burger King or McDonald's jobs."
Mr. Robinson, the Labor Department official, said government regulators investigating off-the-clock work take pains not to tell companies which employee has lodged a complaint.
Several former TeleTech managers said in affidavits that headquarters forced them to require off-the-clock work. Kevin Bingham, who was Operation Command Center manager at a TeleTech call center in Topeka, Kan., said that employees were required to arrive about 15 minutes early and that the time "was intentionally not recorded and not paid by TeleTech."
He said that some managers had complained, but that TeleTech's senior managers had said, "That's the way it's going to be."
Firing Those Who Complain
Michael Gregory, who was TeleTech's second-highest-ranking manager in Topeka, said: "Working off the clock was a condition of a c.s.r.'s employment. Hourly workers who complained were weeded out and terminated."
Julie Lucas, a TeleTech spokeswoman, said the company would not discuss details of a pending lawsuit. But she added, "When we have the opportunity to air the true and complete facts - as opposed to the initial allegations - it will be apparent that we have fairly treated our employees.''
Kimberly Owens, who oversaw 13 salons in Oklahoma for SmartStyle, the company Ms. LeBlue worked for, said the company's policy was to order stylists off the clock when business was slow.
The stylists were supposed to be paid the higher of their commissions- about 45 percent of their receipts - or the hourly wages due them. But if the commissions were lower than the sum of their weekly wages, managers told them to go off the clock to reduce their pay.
"They just wanted to increase profits," Ms. Owens said. "They weren't losing money. They all knew it was illegal."
When she was a salon manager, she was told to clock no more than 35 hours a week, she said. "If you showed too many hours, you'd get a write-up or you'd get terminated."
SmartStyle said its executives had sent memos telling managers not to demand off-the-clock work. "SmartStyle actively seeks to prevent off-the-clock work," said Ms. Drake, the company's lawyer. "In fact, regional managers and area supervisors are required to audit their salons for improper recording of hours."
Ms. LeBlue said she worked hundreds of hours off the clock as both a stylist and a salon manager in Harvey, La., from 2000 to 2003. As a salon manager, she said, her area supervisor pressured her to make her stylists work while being clocked out.
"It was really difficult," she said. "You're caught between what your area supervisor wants and what you think is fair for the girls."
Ms. LeBlue said she so disliked forcing subordinates to work off the clock that she asked to be demoted from salon manager back to stylist. She now works for a different salon company.
My sister works for an insurance company that tells the employees they have to be on-line and ready by 8:30. It takes about 10 minutes or so to get there! So, they have to come in early or get reprimanded.This is also a company that times your bathroom breaks!
What a country, we have illegals working legally, and in this article we have legals working illegally. The NYT is not my paper of record, but from my first hand knowledge a lot of this coercion is going on.
Seems pretty common in fast food joints employing kids, neighbor kids all had to endure this or lose their jobs.
Scummy behavior on the part of employers.
Oh, and, at the end of the day, she has to clock out at 5 even if the last call lasted til long after.
I believe it. I used to have to work after my quitting time, even though I wouldn't be paid for it.
I think this goes on a lot.
Not sure if going to the labor board would help or not.
Having said that, I will say that many of the cases identified in this article (assuming they are true) are an absolute disgrace. In Catholic moral theology, depriving a worker of his/her just wages is a sin that cries out to heaven for vengeance.
some car dealerships are doing this now in the service department. the mechanics essentially are hourly contractors. they come into work in the AM, if there are cars there with 4 hours of work on the clock needing repairs - you get paid for 4 hours of work.
Welcome to the salaried world, MWAHAHAHAHAA!
Many weeks, Ms. LeBlue spent 40 hours in the salon, but was ordered to clock out for 20 of them while waiting for customers to show up, she said.
But they still had to be there. Is their time/lives not worth anything?
If so, they can quit and find another job. FREEDOM!
that's like saying checkout clerks at the store should not be paid when, at certain times of the day, no one is on line to checkout. they should just stand there, at work, not being paid, while waiting for a customer to come to the register.
for some americans, these kinds of low paid service jobs is all they can do, all that's available. so if all companies engage in these practices, where are they supposed to go?
tell us, what do you do for a living?
bump for later reading!'
I agree with you OceanView!
My husband is a chef, paid hourly, and he just found out they have been basing his pay on his scheduled hours not his actual hours- a lot of times he gets in and his boss asks him to clock in early or they have to stay late to close. I know he should have been tracking his actual hours to paid hours all along, but he's too trusting for his own good.
too bad the labor movement's gotten smacked around so badly the past few scores of years. now with dems abandoning workers (not to mention short on power), these folks'll be lucky to get a dime. and i'm sure they're just the tip of the iceberg.
This is not really a problem. You see we have a comparable number of workers who don't do any work when they are "on the clock".
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