Can I Sue My Employer For Having Me Work Off The Clock?

Under California law, an employee cannot be forcefully required by your employer to work after hours, as that would be illegal. The amount of time put in by you at work, has to be paid. This applies even for the extra time that your employer has not authorized. The total time an employee spends working, that the employer had the knowledge of or should have been aware of, has to be compensated for properly.

Various employers in California have been known to forcefully require their workers to arrive at work before time and not check-in before the usual time, or have them stay back late for work and have them clock-out at the normal time. In some cases, employers may also utilize different subtle tactics, like assigning a lot work that couldn’t possibly be completed in a normal workday. Both of the above practices are illegal.

These types of practices are strictly prohibited by California’s off-the-clock work law. Any employee who works before or after hours is eligible to file for a lawsuit if their extra hours aren’t taken into account by their employer. If working off the clock takes the employees hours over the eight hours of a day’s work or the forty hours per week, the compensation rate for this is 1.5 times or twice the usual rate, as directed by the overtime law in California.

Voluntary vs Forced Off the Clock Work

Employees in California who usually work off-hours can be seen in one of two scenarios. They are either forcefully required to stay back for to do work while off the clock with direct or implied warnings, or they voluntarily work after hours off the clock without being authorized officially by the employer. Let’s look at both scenarios below:

California Off-the-clock Law: Mandatory or Forced Off-the-Clock Work

Most employees working in California wonder if their employer can make them off the clock.

The answer to that is no. In California, an employer can never legally require a non-exempt employee to work off hours.

If your employer is aware and comprehends the California off-the-clock law and is willing to break it regardless, you might be in a difficult place. You can rightfully ask to be compensated for the hours of work put in, as given the right being a non-exempt employee in California. However, it is seen sometimes that employers react aggressively against workers who try to demand their rights, even when it is illegal to do so.

Various employers directly order employees to work off-hours, for example coming in before time for their shifts. Whereas some employers are cleverer when it comes to maneuvering around their non-compliance of the labor laws in California. These employers use subtle approaches, some tend to assign excessive work during a standard workday that is impossible to complete, which pushes employees to stay back to complete their daily tasks and handle the additional work.

Another strategy that employers use to side-step California’s off-the-clock law is to mark employees as independent contractors. These employers negotiate with workers and get them onboard as independent contractors working on daily wages rather than pay them over the daily wage even if they work over the usual 8 hours daily. This is illegal, as the laws for independent contractors in California prohibit wrongly classifying workers to get out of compensating them a minimum wage for actual hours worked.

Voluntary Off-Hour Work That Employers Are Not Aware of Or Haven’t Authorized

In this scenario, employers may claim that they should not be liable to pay for the off-hour work by employees that they had not previously authorized. The employers argue that employees that want to put in the additional hours must do it at their own expense.

However, that is against the law in California. As per the Supreme Court, an employer is liable to compensate for the extra hours that an employee put in, whether it was within their knowledge or if they should have been aware of the fact.

This legislation effectively prohibits employers from taking advantage by using the reasoning that the extra hours were not authorized. In such case, if an employer asks an employee to complete a task that is too much to be completed within the usual work hours, they will be required to compensate for the extra hours it takes to complete the task. More so, the employers “should be aware” of the fact that the task is too big to be completed within normal hours.

Can Working Off-Hours Cause You Trouble?

Employees working off hours could possibly face trouble, not with the legal body or the State of California, but with their employers. Most organizations have policies in place with specific clauses in their employment agreements which dictate that employees are required to have authorization to put in extra work hours. So, if an employee does not follow company policies and does not log the extra hours, it is likely that the employer will not have relevant information. However, if the employer finds out, they are likely to terminate said employee. If an employee’s status is that of an at-will worker, they can be terminated for any reason except for factors like gender or race.

Therefore, working extra hours that have not been authorized by your employer may cause employees or workers some trouble as well. If these extra hours of work were put in with the knowledge of your employer or were in a situation where you employer should have been aware of the workload, they can be held liable to compensate for the extra hours worked. Consequently, employers can create strict policies around overtime and working extra hours that prohibit employees from working off-hours, unless specifically instructed.

What Course of Action Can You Take If You Are Forced to Work Off-Hours?

Sadly, if your employer is willingly breaking employment laws in California or doesn’t have the knowledge of the legal obligations and rights, then you might be in a bit of a tough spot. Some courses of action available to you are:

(1) Inform Your Employer That They Are in Breach of Labor Laws in California

Employees can inform their employers that they are protected by the law to be paid for the off-hours work that they have put in. However, this may cause employers to react and terminate workers that actively demand their rights, even if doing so is an illegal practice.

(2) Fulfill the Off-Hour Work Now and Sue For Uncompensated Work Hours Once You’ve Secured Employment Elsewhere

This is a low risk alternative and may seem more feasible to most employees. However, some of your claims might not be covered due to the limitations period. As with penalties in California Labor Law, lawsuits are limited by a one-year statute of limitations. Ultimately, you may not be able to sue for all your work hours.

(3) File A Lawsuit Now

Filing for a lawsuit right away gives you the benefit of maximizing your claims, as the statute of limitations does not run. This is a frightening course of action; however, once a lawsuit is filed, the employers will not have the freedom to openly react without facing repercussions as they would be under strict scrutiny. A lawyer can help evaluate different avenues available to you, as it is a tough decision to make.

How Much Are Employers Liable to Compensate for Off Hours Work in California?

An employer in California is liable to pay at least the minimum wage i.e. $11 per hour, for every hour worked off-the-clock by employees that they had the knowledge of or should have been aware of. If there is a certain agreement or contract in effect that mandates a higher pay rate, then it is possible that the employer will have to pay the usual rate. Furthermore, for the off-hours work that employees worked over the usual 8 hours daily or 40 hours weekly, the employers are liable to compensate in compliance with California overtime rates, i.e. 1.5 times or twice the rate as per the situation.

Brad Nakase, Attorney

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