Playing Cute Doesn't Pay

As a small child, I occasionally did something I knew would displease my parents. When confronted, I would make my eyes as big as possible, smile coyly, offer some excuse, and hope I’d gotten away with it. At these times, my mother would say, “Don’t play cute with me!” When this admonishment was issued, I knew I better 'fess up' to my transgression.

“Playing cute” is defined as intentionally giving the impression of something (often not entirely truthful) in an attempt to potentially mislead. There seems to be no shortage of employers who continue to “play cute” with their employees. I recently came across two articles that indicate employers’ willingness to do so.

The first was an 11th Circuit Court (covering Alabama, Florida, and Georgia) case. In this case, the employer, a security company, needed to increase the hours of a security guard to 60–75 hours per week during COVID. The company reduced his hourly rate from $13.00 per hour (with an overtime rate of $19.50 per hour) to $11.15 per hour (an overtime rate of $16.73) with the onset of this need. Once the employee was placed back on the standard 40-hour workweek, the employer adjusted his rate back to $13.00. Cute move? I don’t think so.

On appeal, the 11th Circuit ruled on behalf of the employee, who claimed the employer’s reduction of his hourly wage was an attempt to artificially lower the rate to avoid Fair Labor Standards Act (FLSA) overtime requirements. This ruling came about, in part, due to Part 778 of the FLSA, which states that the difference between a permissible and impermissible reduction in an employee’s non-overtime rate comes down to whether the rate change is justified by no other reason other than by the number of hours an employee worked. The FLSA deems the employer’s actions in the case to be “evasive” and held for the employee.

The second article indicating an employer “played cute” is almost impossible to believe–but according to a June 15th article on the Today show website, it happened. Even though this incident occurred in California, it is so egregious that it would likely have been treated the same in any circuit court.

It seems the owners of a small restaurant chain, who apparently did not have an ounce of trust in the people they hired, engaged in various labor law violations, including paying employee tips to managers, and refusing to pay overtime. In addition, employees claim the owners hired a “priest” to come on-site and hear employees’ confessions. During these confessions, the “priest” allegedly guided the confession by asking pointed questions related to employment. Employees reported being questioned about whether they had been late to work, had stolen anything from the employer, etc. As a result of all of this, the employer was fined $140,000 in back pay and penalties. Not surprisingly, the “priest” has never been identified, and the local Diocese indicated they had no record of a priest used for these confessions. Not cute at all!

Playing cute can get expensive for employers. Wise words–don’t play cute. It generally doesn’t end well!