Working Off the Clock

Working off the clock labor is that which is unpaid or not contributing to overtime pay, and is usually illegal.

The United States Fair Labor Standards Act (FLSA), is legislation designed to protect workers in most states. The FLSA, articulates that employees be paid overtime for more than 40 hours a week. Due to integration of the FLSA in most state labor law, U.S. employee rights are protected insofar that they must be paid the minimum wage, as well as overtime, and the same compensatory or insurance benefits as other workers in the same role.

Exemption of employees from Fair Labor Standards Act (FLSA) requirements, are those rules which are considered to be executive, administrative, or professional working in specified industries having commission-based contracts, or farm work as part of the employment agreement. Under the FLSA, all non-exempt workers must be paid for all hours worked.

The FLSA states that work that is “off-the-clock” is the same as overtime not compensated by an employer at a standard hourly wage. Federal law defines employment to include permit to work, or “suffer” as result of the activity. Where an employer requires or allows workers to work overtime, under U.S. law that overtime is usually due compensation.

An employer is also generally obliged to pay a worker whose work is suffered. Suffered work is when an employee works extra hours to assist co-workers at the consent of the employer, yet they are unrequired and unpaid.

Common Types Of Off -The-Clock Work

Unpaid preparation is classified as “pre-work” act such as truck warming, loading, transferring of equipment or worksite preparation, are scenarios where a worker is at times off-the-clock. Similarly, unpaid work post-shift, like finishing, cleaning, and returning equipment is off-the-clock.

When an employee is instructed to rework a project without pay. The act of awaiting work when the job is not yet available. Assignments or time that an employer has allowed an employee to wait to perform a task, thus counted as work, and will be paid. If an employee is working on a project and not completed, might take home and work from there without counting the hours. Returning work-related phone calls at home after the shift has ended.

If the employee must stay late to finish helping the customer, must be paid for that time even though shift is ended. If an employee makes the decision to arrive at work early and begin working on the computer, reading emails, working off-the-clock has taken place. An employee might “clock out”, yet continue working by finishing documents, making phone calls, or cleaning; all of which must be compensated under FLSA.

Recovering Back Wages For Off-The-Clock Work

Complaints filed with the Department of Labor may recover up to 3 years of back wages for unpaid overtime; including liquidated damages equal to what a former employee is owed. The DOL awards damages to former employees as a rule of thumb. Employers showing that they acted in good faith, evidencing due diligence in response to FLSA adherence, may supersede such a claim. FLSA approval of a claim allows for employees may also be able to recover attorney's fees if the complaint is found valid.

Preventing Off-The-Clock Work

Off-the-clock work may result in negligence issues for an employer. The best way of avoiding liabilities for overtime work by employees, is to strictly control task times, as well as employee breaks and lunches.

Although some managers may misunderstand they are requiring employees to work off-the-clock, extra work is deemed fine. An employee working unpaid may request back-pay, including compensation for liquidated damages. Cautious employers are more likely to exercise control over off-the-clock work, and subsequently prevent work that will be unpaid from occurring.

Employers can implement a strict program of work process, taking the steps to control for unconsented to off-the-clock work by having knowledge of FLSA rule; and establishing transparent written training policies, monitoring work activities, and informing managers and other supervisors, about off-the-clock work. Employer guidelines should be clear and provide explicit examples of what constitutes “off-the-clock” infringements in the workplace to not foster misinterpretations. Wage and hour law training to educate managers and other supervisors of the definitions of off-the-clock work. It also informs them of their responsibilities to the employer and employees under state and federal wage laws.

Employers may find that they must limit employee access to technology to control overtime. Shift control is key to limiting overtime. Employees should be clocked in during work. Altering shift times is common way of working off-the-clock, as well as working during lunch breaks. Making sure that employees are informed of break and lunch times reduces off-the-clock work errors. Taking the responsibility to ensure that employees are working at times clearly set by policies, as well as training supervisors, and limiting access to technology are recommendations to meeting workplace best practices under FLSA.

FLSA does not provide a definition of “work,” but the term generally includes all time when the employee is acting under the direction or control of the employer, or is acting primarily for the benefit of the employer. Employer can provide activities such as time spent traveling, attending training sessions, answering emails.

Employers could easily recognize who was working late because the employees had to stay in the building to continue working. The availability of laptops, smartphones and other devices now let employees carry the office around in their pockets. Employees may check email or phone messages, or otherwise perform work in the evenings, on weekends, or even while on vacation. Employers expect employees to work or at least to be available after hours.

The employees are exempt from overtime, this is not a problem because they get the same salary every week, regardless of the total hours worked for employees entitled to overtime, any work performed must be counted and paid. The employer expects availability after hours, the potential liability for unpaid hours increases because the employer reasonably should have known that work was being performed.

If an employer does not communicate an expectation for after-hours work, supervisors may give the impression that such effort is expected. In difficult economic times, employees may even believe that working off-the-clock is an unspoken expectation, especially if the employer fails to specifically discourage them from doing. Employees can be subject to discipline for working unauthorized overtime, even if employees voluntarily work after hours and should understand that the time worked must be recorded and that failing to record their time isn’t helping the company.

Off-The-Clock Work Can Trigger Lawsuit

An employee who has been working off-the-clock is often illegal, an attorney may be able to help you file a claim for back pay, understand whether covered by the FLSA or answer questions about the rights as a worker. Number of wage and hour lawsuits for back pay continues to rise, with considerable focus on failure to pay employees for overtime hours. Employers should take steps to ensure that all employees, including supervisors, understand what constitutes actually report all time worked.

Supervisors play a critical role because employees will most likely ask them whether after-hours work should be recorded on a timecard. Sometimes employees are happy to work a little extra because they like their job, or receive some side perks, but when something goes wrong, and they’re not so happy, they start calling attorneys. Employers never know when a relationship will deteriorate in the future, so compliance is essential. When an employee becomes unhappy at work or is terminated, that is when generally see a lawsuit filed.

Most employers are committed to following FLSA wage and hour laws, actively discouraging employees from working off-the-clock. An employer in violation of the law by allowing for unpaid, work off-the-clock, or ignoring the activity and not paying the time, rather than communicating where and when the work should take place, is in violation of FLSA law.

If the employer is intentionally in violation of wage and hour laws, they face far steeper civil penalties. Liabilities under FLSA extend three (3) years back. Employers should be advised that liquidated damages awards are equal to the amount that would be owed in unpaid earnings. Double liabilities in the form of liquidated damages are the risk employers sustain when exposure is too high. Merely paying the employee back-wages is less expensive and litigious than the threat of lawsuit. Employers can be forced to pay liquidated damages as remedy as well as civil penalties if found in violation by the court.

The statute of limitations is customarily two (2) years, yet employers are liable three (3) years for intentional violation of FLSA wage and hour laws. A former employee or current one can file a lawsuit for unpaid wages. Lawsuits can be collective as well. Employees who have experienced the same circumstances if an employer has practiced non-payment for off-the-clock work can sue as part of a collective FLSA action.

Why Employees Should Not Work Off-The-Clock?

FLSA prohibits employees working off-the-clock without due cause. Employer direct request is considered due cause. Some employers maintain employees who work after hours thinking they are “helping” the company by not recording the time. Despite such good intentions, employees cannot choose to decline the protections of the Fair Labor Standards Act (FLSA), and employers cannot refuse to pay. The event of a lawsuit, an employer should not rely on a defense that the employee agreed to violate the FLSA by working without pay.

Supervisors unwittingly contribute to potential liability by praising employees who work off the-clock to stay within budgets. Supervisors offer such praise in writing, documenting knowledge of the failure to pay overtime, creating the potential for a knowing or violation. The FLSA requires that employees be paid for all work, even if the work was not specifically requested. Paying for unauthorized overtime might be painful, but overtime pay cannot be denied.

The FLSA regulations literally state that management cannot sit back and accept the benefits of an employee’s labor without paying for the time. Time recording is the most important element of accountability. Time tracking software can help if coordinated with actual work processes on the job. Time records can also be kept on timesheets, security logs or software app. The main objective is that employers implement an accurate procedure to track employee hours, and a reporting instrument to retain as record.

Requirements To Be Exempt From Overtime

To be exempt from overtime, an employee must be paid a salary. Salaried employees receive a predetermined amount of pay comprising all or a stipulated part of an employee's compensation for employment. Therefore, the pay period cannot be reduced on basis of quantity or quality of work performed. Salaried employees must be paid at least $23,660, an employee must fulfill the job duties tests for enumerated exemption.

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