Working off the clock, putting in unpaid time to finish a job or do it better. It's something most workers do at one time or other, a part of satisfying the individual's basic work ethic and pride of accomplishment. But it's another thing when employees are told by employers, or made to feel, that such unpaid work is required to keep their jobs.
While wage-and-hour laws have been around for a half-century to protect against this type of exploitation, the economic pressures of the 1980s seemed to encourage abuse of the law. Mass layoffs created a climate of fear in the workplace. The specter of global competition was invoked to demand that workers "do more with less."
Estimates of unpaid overtime worked by hourly employees range up to $1 billion a year and more, most of it in the lightly-unionized service sector of the economy.
The economic depression caused companies to blame their workers for lack of productivity: employees could and should work harder for the same pay. The simplest managerial solution was to assign workloads that could rarely be completed in assigned hours, forcing employees to improve their productivity by working for free on their own time.
In most cases, however, that unpaid work is patently illegal. Federal law says that if an employer "suffers or permits" off-the-clock work, the employee must be paid even if the overtime is not "authorized."
But employees placed in that situation seldom find legal relief unless they want to lose their jobs. In a sort of Alice in Wonderland scenario, the most persistent violators are usually companies with a stated policy against working off the clock; a worker who complains about unpaid overtime is obviously guilty of violating company rules and subject to firing.
Even when government investigators find evidence of unpaid forced labor, they may not go to court to recover due wages from a recalcitrant employer. The Labor Department chooses which cases it litigates, leaving some employees on their own to file private lawsuits, which are a costly risk. In one recent year, the Labor Department calculated that $121 million was due employees who complained to the agency but was only able to collect two-thirds of that amount because it lacked resources to pursue all cases in court.
Maryland's Employment Standards Service collects about $600,000 a year in unpaid overtime (or below-minimum-wage hours) for workers, investigating about 1,600 cases a year. Of some three dozen cases referred to the attorney general for legal action each year, employees win about 40 percent of the time.
"Off-the-clock work has become like a dirty little secret in a
gossipy town. Everybody knows about it, but nobody is doing anything about it," says William H. Wynn, president of the United Food and Commercial Workers. Through lawsuits and complaints to the Labor Department, his national union is trying to bring that dirty little secret out into the open -- and to recover millions of dollars in allegedly unpaid labor for employees of retailers.
Last month, 183 current and former employees of Food Lion Inc. supermarkets filed a joint complaint with the U.S. Labor Department, asking the government to institute a class action lawsuit against the chain for unpaid overtime and claiming $388 million in back pay and damages.
Not coincidentally, the UFCW has tried, without success, to convince its employees to join the union. The union also financed a federal lawsuit by 127 Farm Fresh supermarket employees in )) Virginia last year, claiming they were not paid for overtime hours, in an effort to build support for an organizing campaign.
The UFCW is especially worried about the extremely low wage costs -- at 7 percent of sales about half the industry average -- of the rapidly growing Food Lion chain. About 37 percent of Salisbury, N.C., firm's after-tax profits derive from its unpaid off-the-clock work, the union claims. Expanding into the north and southwest, with 6 stores in Maryland and 2 in Delaware, Food Lion represents an economic threat to UFCW-contract supermarkets and their employees in this area.
Another major effort by that union to force an employer to pay for off the clock hours backfired. Last year, it filed a class action suit on behalf of 100,000 employees of Nordstrom Inc., the upscale, sterling service department store chain. Sales employees were required to do much their nonsales work, such as delivering packages, writing customer thank-you notes, and compiling inventory lists, on their own time, the suit charged. The legal effort came about after two years of futile contract talks with the chain's Seattle stores, but employees reacted by voting out the union.