Is It Illegal to Make Employees Work Off the Clock?

It is almost the end of the workday, and your employer has just asked you to redo a project. The deadline is in a couple of days. You decide to stay late and wrap it up. You won’t get paid for this work, but at least the project will be over.

This is an example of working off the clock. With remote work and telecommuting, bringing work home and putting in extra hours is even easier. Whether an employee voluntarily works extra unpaid hours or the employer demands it, work that is unpaid or not counted towards overtime is often illegal.
Workers must understand their wage and hour laws to prevent wage theft.

To understand your work time labor laws, talk to a local wage and hour lawyer for legal advice.

What Is Working Off the Clock?

California employment law attorney Eric Kingsley explains off-the-clock work simply. “You’re working and not getting paid for it.” This happens anytime an employee’s work-related tasks are directly unpaid and not counted towards work hours for calculating overtime.

Off-the-clock work can take many forms. Common examples of unpaid overtime include:

• Unpaid pre-shift work: Getting a worksite ready for a project, putting on safety gear, setting up or moving machinery, getting logged on to computers, or training on one’s own time.
• Unpaid post-shift work: Restaurant clean-up, returning equipment, breaking down a worksite, or taking extra time to wrap up a project you didn’t complete during the workday.
• Unpaid job duties: Answering work phones or scheduling appointments during a lunch break or other break times.
• Unpaid after-hours: Rework if your employer insists on project revisions or corrections.
• Unpaid administrative work: Completing or filing paperwork after the end of the day, returning phone calls, or reviewing patient charts.
• Unpaid co-worker assistance: When you’re already off the clock, but help a colleague finish their project or task.
• Unpaid downtime: Waiting in between projects if work is slow or there isn’t enough work.

Pay and Overtime Requirements

Being forced to work unpaid or off the clock violates the Fair Labor Standards Act (FLSA). The FLSA is a federal law that guarantees both minimum wage and overtime pay. Under the FLSA:

• Employers must pay hourly employees either the federal minimum wage ($7.25 per hour) or their state’s higher minimum wage rate.
• Employers must pay employees 1.5 times their regular rate of pay for every hour of overtime they work per workweek (over 40 hours per week).

Who Does the FLSA Apply To?

The FLSA’s rules apply to “non-exempt employees,” individuals who are not exempt from the FLSA’s minimum wage and overtime wage rules.

Non-exempt employees get paid hourly instead of a fixed salary. For example, eight hours’ worth of pay if you work eight hours or four hours’ worth of pay if you work four hours.

If you are non-exempt, you must get at least the minimum wage and the overtime rate for any time you work over 40 hours a week. If a non-exempt employee works off the clock, it means they are:

• Working hours and not getting paid minimum wage
• Working hours that don’t count towards overtime

Off-the-clock work and unpaid overtime for job-related activities violate the FLSA.

Exempt Employees

There is another category of employees called exempt employees. Exempt workers do not qualify for FLSA protections. Exempt employees include executive, administrative, or professional employees receiving a set salary regardless of the number of hours they work.

Many exempt employees work more than 40 hours per week. Since exempt employees get paid a salary, the FLSA’s overtime requirements don’t apply to them. However, some employers misclassify workers as exempt to avoid labor law protections and overtime pay.

Exempt employees don’t technically work off the clock, since they get a salary instead of an hourly payment. However, if an employer demands long work hours, the exempt employees may feel that their salary is insufficient. In this case, employees can negotiate with employers about their salary or discuss their schedules.

FLSA De Minimis Rule

In Troester v. Starbucks, Inc., a former Starbucks employee asserts that he is due more than one full day of pay for the time spent carrying out required work duties while off the clock. The Fair Labor Standards Act (FLSA) requires payment for employees for all work time. However, there is an exception referred to as the ‘de minimis rule’—when the amount of unpaid wages is so small as to make it insignificant.

Examples of allowed unpaid circumstances include time spent turning off the lights or having a bag searched for less than a minute after the workday. This recordkeeping rule emerges from the notion that “the law cares not for trifles.”

However, for minimum wage workers, an entire day’s pay accrued over the course of a year may be significant. If a company underpays its workers by even an admittedly small degree individually, the cumulative amount in dispute can rise into the millions.

Understand Your Company Pay Policies

Failing to prevent off-the-clock work can get employers into legal trouble, including fines. It is in your employers’ best interest to have clear policies and training about off-the-clock work, overtime, and which employees are non-exempt or exempt under FLSA.

To avoid issues with off-the-clock work as an employee, familiarize yourself with your company’s policies. Read your employee handbook or talk with a human resources specialist if you have questions about:

• Your company’s procedures for requesting overtime or having it approved
• Any time you worked and weren’t paid

Back Pay and Compensation

If your employer made you work off the clock, you can file a complaint with the U.S. Department of Labor’s (DOL) Wage and Hour Division. With an FLSA claim, you can get back pay for up to three years of unpaid wages.

If you bring a lawsuit for unpaid wages or overtime, you can also get:

• Liquidated damages. Money matching the amount of back pay owed. So, you could get back pay plus liquidated damages, for double the amount you weren’t paid.
• Attorneys’ fees. The costs involved in having an attorney represent you.

Kingsley says that either a lawsuit or filing a complaint with the Department of Labor would be acceptable. “A lot of times our office will refer people to the state labor commissioner’s office to enforce on their own, if we can’t adequately represent them because there’s not enough at issue. And if the problem is a systemic issue for lots of employees, then a class action might be appropriate in those circumstances.”

As for taking legal action, Kingsley says, “If an employer is forcing you to work, and you’re off the clock, that can happen in a host of different ways. Talking to your employer doesn’t seem like a real viable option in that situation. So it seems like the only real way to get what you’re entitled to is through a lawsuit.”

Finding the Right Attorney for Your Needs

If your employer has violated federal or state laws by making you work overtime, you have legal options. You can file a complaint with the DOL or file a lawsuit.

It’s essential to approach the right type of attorney — someone who can provide you legal help through your entire case. Visit the Super Lawyers directory to contact a local wage and hour attorney.