It's Saturday afternoon and you're in the office without clocking in. Your boss doesn't want to hear about it. Now what?
In 2017, the Department of Labor collected more than $157 million in unpaid overtime on behalf of hourly workers. In May of that year, an Economic Policy Institute study of just 10 states found that employers illegally underpay 2.4 million workers by more than $8 billion per year due to wage theft, either paying less than the minimum wage or requiring overtime without paying for it.
Activists often highlight the most extreme cases and most vulnerable workers, typically those in service and retail who have few options and struggle to make ends meet, yet it's a problem that plagues virtually every industry. Often the problem is far more subtle than it would seem. It's a company that ignores problematic branches, an accountant that tolerates sloppy bookkeeping. It's a boss who assigns 48 hours of work per week and turns a blind eye when her staff starts showing up on weekends.
As the employee, you have rights, but enforcing them without getting fired is often harder than it seems. After all, as every employee in an abusive workplace has asked themselves, is that three hours of overtime really worth the risk of a fight with your boss?
Well, it doesn't have to come to that. Whether you're in the office on an unpaid Saturday or cleaning the grill after hours, you can protect your rights without risking your job. Here are a few first steps to try.
First, remember that your boss is responsible for your workplace.
The law has a concept called "knew or should have known." Essentially it means that when it's someone's job to know something ignorance is no excuse. With your boss, it's their job to know when employees get paid, work more than 40 hours per week or are asked to do something wrong. They don't get to see no evil when it comes to labor law enforcement.
Maybe your boss is ignorant of what's happening, maybe they just don't care. Yet whether by accident or design they aren't doing their job, and the odds are good you're not the only person affected.
Talk to Your Boss
You still need to let your boss know about the situation.
There are two reasons for this. First, as noted above, it's possible that your boss legitimately is in the dark. Sometimes a supervisor misses things, so bring the problem to their attention and give them a chance to fix it on their own.
It's also the law.
With a few exceptions (such as particularly egregious physical harassment or assault), an employer is entitled to the chance to correct any problems internally. Neither lawyers nor the Department of Labor will get involved if an employer can effectively plead ignorance.
So, deeply uncomfortable as this may be, raise the issue. Send a follow up e-mail so you've got a written record. It doesn't have to be a confrontation. Merely make your employer aware of the problem and give them a chance to respond.
Practice Principled Rebellion
Writing in the Harvard Business Review, the psychologists Peter Coleman and Robert Ferguson suggest that employees practice what's called "principled rebellion" when bosses continue to ask for illegal practices.
"This is an active and deliberate choice to rebel at work incrementally and strategically," they wrote, "to minimize harm with maximum integrity. It entails learning how to say no, systematically and sequentially, by slowly turning up the heat on those in charge."
Even when you have the right, saying no at work is hard. So the authors recommend that you start by appealing to self-interest. Respond to requests with phrases like "I don't think the department has the budget for overtime" or "I don't think we realized how long this would take."
Use a collaborative tone. Say "can't" instead of "won't" and use lots of "we" instead of "you." It allows you to draw a line without setting the stage for a confrontation.
Go Over Their Heads
If a soft approach fails, look for someone over your boss' head. This won't work at every company, especially small ones, but if your boss reports to someone or if your company has a human resources department they can be great assets.
This is particularly true because their self-interest is deeply tied up in making sure that employees get paid.
Unpaid wages and overtime carry potentially enormous penalties. Not only is the employee entitled to back pay, but in case of a lawsuit the employer could have to pay double or triple the amount of the back pay as damages along with all of the employee's attorney's fees. This can add up quickly, and the higher ups know it.
Talk to Your Coworkers
Talking to your coworkers isn't just a good idea. It's your legally protected right.
By this I don't mean complain all day, that's not productive. Instead, find out if other people are having the same problem. Ask for their solutions and suggest some of yours. Be open to suggestions. Collaborate on trying to solve this problem, because you might discover that your workplace has more options than you realized.
Talk to a Lawyer
Speaking as a lawyer myself, this is the last resort.
Sometimes a lawsuit really is necessary. As has increasingly come out over the past several years, surprisingly large companies can make a near-institutionalized practice of stealing from their employees. If you work at a place like that, the odds are that going to human resources isn't going to do a bit of good.
That's not most people, though. The average worker is working at a company that internalizes labor law violations. For them, the odds are that there are plenty of resources available before taking the matter to a lawyer, and a lawsuit really is a nasty, drawn out, expensive, very public affair.
That said, sometimes it's just worth picking a fight. If you have been systematically robbed for thousands of dollars in pay. If your boss won't do anything about it and keeps asking for more. If your boss's boss doesn't care. If your coworkers don't have anything constructive to add. Well, then it might be time to sit down with an attorney.