Is it Illegal to Work ’Off the Clock?

Working off-the-clock is illegal, be it a worker coming in early to assist with the setting up of a worksite or an employee deciding to stay late to complete a project. The Fair Labor Standards Act (FLSA), which is applicable for almost all employees, states that employees working more than forty hours in a week must be paid overtime for all the work that they do.

The Fair Labor Standards Act

The FLSA covers most employees; they oversee overtime, minimum wage and other forms of protection for employees. Some employees that do not fall under the requirements of the FLSA are professional, administrative, or executive workers of industries such as farm work and commission based sales. The FLSA states that all worked hours of non-exempt employees must be compensated.

What Does Working ‘Off-the-Clock’ Mean?

Any work that an employee does which does not count towards their total work hours for the week and are not paid for, fits under the category of off-the-clock work. The definition of the term ‘employs’ according to federal law is to ‘permit or allow to work’. In other words, an employer must pay an employee for work they have allowed them to do. Employers must also be sure to compensate their staff for “suffered” work. Work that an employee does which has not been requested by the employer, but is still allowed, is considered as suffered work; this includes working unpaid and working extra time to assist colleagues.

Common Examples of Off the Clock Work

There are several different ways in which off-the-clock work can be done; this includes work that is done offsite as well. Below are some examples of off-the-clock work:

  • Preparation that is unpaid; like time given to prepare a restaurant for opening, warming up, loading of trucks, worksite preparation, and equipment transfer.
  • Unpaid work after a shift; like cleaning up, completing work that was meant to be done during the day, and dropping off equipment at another work site.
  • Unpaid administrative work; such as completion of paperwork, management of meetings, attending training sessions, and patient chart reviews.
  • Unpaid rework; like asking an employee to correct mistakes or to redo an entire project without compensation.
  • Waiting for more work to come in; waiting for a new assignment to start or the time between assignments must be paid as it is counted as work too.

Recovering Pay for Work Done Off-the-Clock

Since it is illegal to work off-the-clock, employees may be able to get back pay for up to 3 years for unpaid overtime and hours by filing a complaint with the Department of Labor (DOL). Employees might even be able to gain back twice the amount of pay they are owed by recovering liquidated damages. These damages are now a set standard and employers can only avoid them by proving they made an effort to investigate the FLSA application for particular employees. The expense for the lawyer’s fee might be covered as well in case an employee wins the claim.

Preventing Work Off-the-Clock

Employers that encourage or allow work off-the-clock can get into a lot of trouble. Some employers and supervisors believe that any work that an employee does off-the-clock, that hasn’t been required by them is fine since it could just be counted as extra work; but that is not the case. Even employees that willingly offer to work off hours can later have a change of mind and file for back pay, including liquidated damages. Employers that are careful must be in total control of their employees’ hours and make sure that no work goes unpaid.

Some steps that can be taken by employers to ensure no work is being done during off hours are to; trainings managers, supervisors and employees about working off-the-clock, keeping a close eye on employees’ work time, having written policies in place, and having a clear understanding themselves of the FLSA and the employees that it covers.

Free Legal Advice For Off-The-Clock Work Questions

Most of the time, it is against the law to work off-the-clock. If you have been working off-the-clock, you may be able to get help from a lawyer to file a back pay claim, to get more knowledge about whether FLSA covers your situation or just to get answers to inquiries and questions that you might have. Get more information today by reaching out to us and speaking with one of our employment attorneys in your area.

Brad Nakase, Attorney

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