Ask The Lawyer By: Daniel A. Gwinn, Esq. WORK LATE FOR FREE?


QUESTION: I manage a small restaurant. A guy who works in the kitchen made a huge mess last week when he took out the trash. There was a leak in the trash bag: He left a trail of stinky slime from the kitchen down a hallway, past the bathrooms and out the back door Although it was the end of his shift, I told him he had to stay to clean up the mess. He gave me a lot of attitude, but eventually got out the mop and went to work. It took him several hours to get the floors clean. He says I have to pay him for his time – plus overtime. I don’t see why I should pay him anything, especially anything extra, for cleaning up the mess he made through being careless.

ANSWER: If your employee is an hour worker, you have to pay him for all hours worked, even if it was his own fault he had to stay late. And yes, you do have to pay overtime at time and a half for every hour over 40 he worked in a week. If the extra work did not put him over the 40-hour mark, you only need to pay him his standard hourly rate.

Under the Fair Labor Standards Act (FLSA), employees must be paid at least the federal or applicable state minimum wage for all hours worked (in Michigan, the minimum hourly wage is now $9.45 per hour). Whenever hourly workers put in more than 40 hours in a 7-day workweek, they are entitled to overtime pay at a rate of 1.5 times the hourly rate. Because there is no limit on the number of hours a worker can be asked to work, the overtime requirements act as an incentive to employers to avoid asking workers to put in 70-, 80-or 90-plus hours per week.

But the duty to pay overtime applies only to a weekly average: Employees can be asked to work even 24 hours in one day without being overtime-eligible if their hours for the week stay below 40.

The bottom line is that if your employee put in the time, he gets his dime You have to pay him. That said, employment Michigan is at-will: Employers do not need a reason to discharge a worker. If you’re not happy with this worker, you can always fire him. (Caveat, you are not allowed to fire workers because of their race, sex, country or origin, religion, color, age, weight, marital status or disability.)

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law

901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
[email protected]

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