De Minimis Work and Constructive Knowledge

Michael Caldwell : April 1, 2012 10:32 am

A recent Seventh Circuit case, Kellar v. Summit Seating Incorporated, addressed both de minimis overtime and the requirement that an employer know or should have known that an employee was working uncompensated overtime.

The de minimis doctrine (“De minimis non curat lex.”) allows employers to disregard work that is otherwise compensable work when only a few seconds or minutes of work beyond the scheduled working hours are in dispute. The doctrine usually applies where, as a practical administrative matter, it is impossible to record precisely the work time for payroll purposes.
The court held that Kellar’s claim was not a case where the de minimis doctrine applies, because the amount of her pre-shift work, both per day and in the aggregate, was substantial. Specifically, Kellar worked between 15 and 45 minutes before each shift.

In Ms. Kellar’s case, Summit had no reason to suspect she was acting contrary to the company’s no- overtime policy. Kellar’s behavior raised no flags. When Kellar forgot to punch in, she would simply write in her time card that she arrived at the beginning of her scheduled work shift. Over the course of eight years, Kellar never told her employer that she had been working overtime. There was no indication that anyone else in management knew Kellar was performing pre-shift work. The Employer was not liable for Kellar’s unpaid overtime because it did not know, nor could it have known, that she was working unpaid overtime.

To avoid liability and to comply with the law,  A “no-overtime” policy in itself is not enough for an employer to avoid paying overtime. Employers who do not wish to pay overtime must take affirmative steps and make sure that workers do not perform any work without permission.  Employers must implement and enforce a strict time keeping policy and discipline those workers who do not record their hours accurately. An employer must be on alert as to the time performed by employees before or after the scheduled shift. If an employer is aware of or has reason to suspect that employees work “off-the-clock” (e.g. employee’s complains, time-keeping cards, manager’s observation), the employer must compensate for such hours.

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