How do I prove that my employer knew or had reason to believe that “off the clock work” was being performed?
An employer will be held to “know” what it “could have found out” if it had paid attention to what its employees were doing. The legal standard is whether an employer could have learned of the employee’s activities by making reasonably diligent inquiries. According to the courts, it is a “rare” case in which an employer will be found to lack the requisite knowledge when the activities in question are “part and parcel” of an employee’s job, unless the employee has deliberately hidden the fact that s/he is performing them.
An employer is held responsible for her employee’s actions, regardless of whether or not the employer knew what the employee was doing. Employers must keep detailed time records. An employer can be liable even without actual knowledge of the work being performed because employers are able and have a reasonable opportunity and duty to inquire as to what the employee is doing after hours at work. But if the employee hides her actions from the employer, the employer may not have to pay overtime.
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