Dear Legal Mailbag:
My school is fortunate to have a secretary who is kind, helpful and beloved by all. As the principal, I appreciate the way she keeps me organized, and she is always willing to help others – students, teachers, parents, you name it!
She is certainly a hard worker, and that might be a problem. Her workday starts at 8:00 a.m., but her husband drops her off at school at 7:30 every day. I have told her that she should relax until 8:00 a.m., but she simply scoffs and tells me that she would get bored just sitting around when there is work to do. So she busies herself with filing and other administrative tasks so that she is ready to engage with students and staff at 8:00 a.m.
That sounds like a win-win to me. And it would seem odd to prohibit her from working when she wants to do so. But I certainly don’t want to pay her for that half hour every day. Does Legal Mailbag have any concerns?
If you don’t want to pay the secretary for the additional work, you are going to put your foot down and tell her not to start working until 8:00 a.m. Conn. Gen. Stat. § 31-58 defines “employee” as follows: “(e) ‘Employee’ means any individual employed or permitted to work by an employer” (emphasis added), and Conn. Gen. Stat. § 31-76b provides:
(2) (A) “Hours worked” include all time during which an employee is required by the employer to be on the employer’s premises or to be on duty, or to be at the prescribed work place, and all time during which an employee is employed or permitted to work, whether or not required to do so . . . . (Emphasis added).
In both cases, the key phrase is “permitted to work.” Non-exempt employees, such as your hardworking secretary, are entitled by law to be paid for all hours that they must work or are permitted to work. Accordingly, you must tell her not to work before 8:00 a.m. or the school district will be obligated to pay her for the additional work that she does before 8:00 a.m. every day.
This requirement actually makes sense when you think about the purpose of the wage payment laws and similar remedial laws, which are intended to protect people. If employees could volunteer to work without pay, there would be a huge risk that employers would pressure employees to do extra work “off the clock.” The bright-line test requiring employers to pay for all hours employees are permitted to work prevents employers from exploiting employees by asking them to “volunteer” to do extra work.
Legal Mailbag is confident that you haven’t pressured this secretary to do the extra work. But that doesn’t matter. Right now, you are permitting her to work, thereby obligating the district to pay her for the additional time. Tell her to read a book or take a walk or do whatever she wants until her workday starts at 8:00 a.m.
Originally appeared in the CAS Weekly Newsletter.