Is it Illegal to Make Employees Work 'Off the Clock'?

Use these links to jump to different sections:

• What is Working Off the Clock?
• Pay and Overtime Requirements
• Understand Your Company’s Policies
• Back Pay
• Questions for an Attorney
• Finding the Right Attorney for Your Needs

It’s 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.

Instead of redoing the project tomorrow during work hours, you decide to stay late and wrap it up. You won’t get paid for this work, but at least the project will be done, and you won’t have to worry about it.

This is an example of working off the clock. With laptops and smartphones, bringing work home and putting in extra hours is even easier.

But 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.

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 is:

• Directly unpaid
• Not counted towards work hours for calculating overtime

Off the clock work can take many forms. Some common examples include:

• Unpaid preparatory work, like getting a worksite ready for a project, putting on safety gear, setting up or moving machinery, getting logged on to computers or other technology, or training on one’s own time
• Unpaid post-shift work such as restaurant clean-up, returning equipment, breaking down a worksite, or taking extra time to wrap up a project you didn’t complete during the work day
• Unpaid work during a lunch break or other break times throughout the workday
• Unpaid rework if your employer insists on a project being revised or corrected
• Unpaid administrative work, including 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 down time or waiting in between projects if work is slow

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:

• Employers must pay employees either the federal minimum wage ($7.25 per hour) or their state’s higher minimum wage rate if there is one
• Employers must pay employees 1.5 times their regular rate of pay for every hour of overtime they work per week (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 on a fixed salary: eight hours’ worth of pay if you work eight hours, four hours’ worth of pay if you work four hours.

If you are non-exempt, you must at least be paid minimum wage and a higher rate for any time you work over 40 hours a week.

So, if a non-exempt employee works “off the clock,” this means they are:

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

These are violations of the FLSA’s requirements.

Exempt Employees

There is another category of employees called “exempt employees,” individuals exempt from the FLSA’s protections.

Exempt employees include executive, administrative, or professional employees who are paid a set salary regardless of the number of hours they work.

Many exempt employees work more than 40 hours per week. But since exempt employees get paid a salary, the FLSA’s overtime requirements don’t apply to them.

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

Understand Your Company’s Policies

Failing to prevent off the clock work can get employers in 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, it is worth familiarizing 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 on requesting overtime or having it approved
• Any time you worked and weren’t paid

Back Pay

If you are a non-exempt employee and your employer made you work off the clock, you can file a complaint with the Department of Labor’s (DOL) Wage and Hour Division for back pay up to three years.

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

• Liquated damages: Liquidated damages is money matching the amount of back pay you are owed. So, you could get both back pay plus liquated damages, totaling double the amount you weren’t paid.
• Attorneys’ fees: Attorneys’ fees are the costs involved in having an attorney represent you.

Which option should you pursue? Kingsley says that either a lawsuit or filing a complaint with the Department of Labor would be acceptable. By way of example, he says, “a lot of times our office will refer people to the state labor commissioner’s office to enforce on their own, if we feel that 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 the necessity of 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.”

Questions for an Attorney

If your employer has violated federal or state laws by making you work overtime, you may be wondering what your legal options are. Should you file a complaint with the Department of Labor? Bring a lawsuit?

Fortunately, many attorneys provide free initial consultations to prospective clients. These consultations allow the attorney to hear the facts of your case and for you to determine if the attorney meets your needs.

To see whether an attorney is a good fit, ask informed questions such as:

• What are your legal fees, and what billing options do you offer?
• What is your experience as an employment attorney?
• What is my best strategy for recovering unpaid wages or overtime?
• What is the statute of limitations in my situation?
• What kind of damages could I get in my case?

Finding the Right Attorney for Your Needs

It is essential to approach the right type of attorney—someone who can give you legal help through your entire case. You can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location. 

If your employer forced you to work off the clock, consider looking for a wage and hour attorney.