California law working off the clock
Off-the-clock labor work is often unpaid, does not add to overtime pay, and is generally illegal. According to California’s wage and hour law, employers should not ask employees to work overtime without pay.1 Unpaid work done by employees for their employer, with their knowledge, is defined as off-the-clock work.
Sometimes off-the-clock work is explicitly asked for by supervisors or employers. However, in some cases, the employer subtly encourages or requests work to be done off the clock.
Work off-the-clock may be encouraged by an employer to avoid compensating an hourly waged worker for the total number of hours they work – or to avoid compensating for overtime as obligated by overtime laws of California, according to Douglas Wade, a California employer class action defense attorney.
Working off the clock is illegal in California when employees:
- Physically appearing at the workplace at the shift’s start;
- Presenting themselves for work by logging on to a computer remotely;
- Appearing at a client’s job site;
- Setting out on a trucking route;
- Telephoning the store two hours prior to the start of a shift.
Regardless, employers are required by California law to compensate employees for all off-hour work. You can acquire the help of a California employment lawyer to get the compensation that you are rightfully entitled to.
Under California law, how is “work off the clock” defined?
California’s wage/hour law defines off-the-clock work as work that an employee performs without getting paid. Under California law, an employer is obligated to pay the wages of an hourly employee for all time that the employee is under the control of the employer, and includes all the time the employee is suffered or permitted to work, whether or not
required to do so.
Common practices of off-the-clock work consist of the following:
- Working before a shift begins, like time given to prepare a restaurant for opening, arranging a workplace, or arranging safety equipment.
- Work after a shift ends, like cleaning up, storing, or transferring equipment to another site.
- Clerical work, like staying behind and working on completing medical charts or paperwork.
- Correcting mistakes or redoing a project as requested by the employer.
- Work that an employee does during their rest or meal break.
Sometimes off-the-clock work is compensated at the employee’s regular pay rate. However, the pay rate for this work should be 1.5 times or double the regular rate.
Common types of work off-the-clock
Pre-work is defined as due groundwork, like warming up a truck, preparing a worksite, or transferring/loading equipment; these are situations where an employee is off the clock. Likewise, post-shift unpaid work such as taking out the trash, cleaning machines, washing cars, sweeping, and counting money are also considered off-the-clock.
Instructions were given to an employee to revise a design or writing without compensation, waiting for work when the job is not available yet, and wait time that an employer gives an employee before completing a task are all counted as work that must be paid. If an employee has a project and has to complete it, he might work from home without the hours being counted. Taking phone calls at home that are work-related after the shift ends.
If an employee must stay after hours to continue attending to a customer, this time must also be paid. If an employee arrives early at work and starts reading emails or working on the computer, this is also off-the-clock work. When an employee continues to work after clock-out by cleaning, making phone calls, or finishing documents, according to FLSA, they must be compensated for it.
Retrieving back pay for work off-the-clock
Returning wages for up to 3 years for unpaid overtime is possible by filing a complaint with the DOL; this could include liquidated damages equivalent to what the employer owes. As a principle, former employees are awarded damages by the DOL. Employers displaying that things were done in good faith, demonstrating due diligence in compliance with FLSA, may surpass such a claim. If the claim is approved by FLSA and is found valid, then the attorney’s fees may also be recovered for the employees.
Does an employer always have to request “off-the-clock work”?
An employer does not always request unauthorized off-the-clock work explicitly. Various employers find more indirect ways for employees to do unpaid work, as they are somewhat acquainted with the employment law of California.
For instance, time clocks or timesheets can be set up by employers so that employees cannot record post-shift or pre-shift work time. Employees can be discouraged from reporting overtime due to this.
Or employees may be required to complete more work than they could complete during regular work hours or shift.
Can salaried employees claim to work off the clock?
Yes, certainly.
In California, every non-exempt employee is entitled to compensation for overtime if the work exceeds forty hours in a week or 8 hours in a day.
California’s white-collar exemption means that a good number of salaried employees are exempt, but many are not. An exempt employee’s legal definition does not depend on whether an employee is paid hourly or salary.
This means that despite being a salaried employee, off-the-clock claims can be made against your employer if you work additional hours.
How can I claim “off-the-clock” work against my employer?
To take successful legal action against your employer for off-the-clock back pay, the following points will all be required:
- You did work for your employer and were not compensated for it;
- Your employer should have been aware of or was aware that you were working; and
- Your employer ignored it – did not stop you from working overtime and neither compensated you for the work done.
A skilled California employment attorney can support you in claiming the back pay that your employer owes you, including overtime compensation for off-the-clock work. For cases where large employers are involved, and a structured policy of encouraging or requiring work off-the-clock is in place, a wage and hour class action lawsuit could be the best way to claim your rights.
Free legal advice
For California law off-the-clock queries or to confidentially discuss your case with our experienced California employment and labor lawyers, feel free to contact us.
