Off-the-clock labor work is often unpaid or does not add to overtime pay and is generally illegal. According to the wage and hour law of California, employers should not ask employees to work overtime without pay.1 Unpaid work that is 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 the supervisors or employers. However, in some cases, the employer subtly encourages or requests for work to be done off-the-clock.
Work off-the-clock may be encouraged by an employer in order to avoid compensating an hourly waged worker for the total number of hours they actually work – or to avoid compensating for overtime as obligated by overtime laws of California.
Regardless, employers are required by California law to compensate employees for all off-hour work. You can acquire 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 is performed by an employee without getting paid.
Common practices of off-the-clock work consist of:
- 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 equipment, or transferring equipment to another site.
- Clerical work; like staying behind and working to complete medical charts or paperwork.
- Correcting mistakes or redoing a project as requested by the employer.
- Work that is done by an employee during their rest or meal break.
Sometimes off-the-clock work is compensated at the employee’s regular pay rate. However, for this work, the pay rate should be 1.5 times or double the regular rate.
Common Types of Work Off-The-Clock
Pre-work is defined as unpaid groundwork; like warming up a truck, preparing a worksite, or transferring/loading of equipment; these are situations where at times an employee is off-the-clock. Likewise, post-shift unpaid work shut as taking out the trash, cleaning machines, wash cars, sweep, count money are also considered off-the-clock.
Instructions given to an employee to revise a design or writing without compensation, waiting for work when the job is not available yet, wait time that an employer gives an employee before completing a task is all counted as work that must be paid. If an employee has a project at hand 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 is required to stay after hours to continue attending to a customer, this time must be paid as well. If an employee decides to arrive early at work and start reading emails, 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 he or she must be compensated for it.
Retrieving Back Pay for Work Off-The-Clock
Recovery of back wages up to 3 years for overtime that was unpaid 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 For “Off the Clock Work”?
An employer does not always request for unauthorized off-the-clock work explicitly. Various employers find more indirect ways for employees to do unpaid work, as they are somewhat acquainted with employment law of California.
For instance, time clocks or timesheets can be set up by employers so that employees are not able to record time of post-shift or pre-shift work. Employees can be discouraged to report overtime due to this.
Or employees may simply be required to complete more work than they could possibly complete during the regular work hours or shift.
Can Salaried Employees Claim for Work Off-The-Clock?
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 there are still many that are not. An exempt employee’s legal definition does not depend on whether an employee is paid an hourly wage or a 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 Make A Claim For “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.4
A skilled California employment attorney can support you to claim 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.
Brad Nakase, Attorney
AVVO Clients’ Choice Award 2019
Justia Highest Rating Honor 10
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Business Trial Lawyer since 2005. Proven Results.