What Is “Working Off the Clock,” and Is It Legal?
“Working off the clock:” Everyone does it, so it must be legal, right? Workaholics normalized this concept in society. However, working off the clock and not receiving payment for it is actually illegal in most states. The Fair Labor Standards Act, which applies to most workers in the United States, requires that employers pay their employees overtime for all work carried out beyond the traditional 40-hour workweek. Have been working off the clock for your employer? Have you not received payment for all the extra time you put in? Discuss your rights and options with an experienced employment attorney.
What Constitutes Working “Off the Clock?”
There are several ways you may work off the clock for an employer, such as taking a report home to finish it, driving your employer’s dry-cleaning to the launderer on your way home or running work-related errands prior to arriving at the office. What makes acts such as these “off the clock” is when your employer fails to pay you for your time.
Federal law clarifies that off-the-clock work that requires compensation is work that is either “suffered or permitted” or required. Suffered and permitted work is work that an employee is allowed to engage in but is not requested. For instance, you may choose to work overtime to help your employer meet a tight deadline. However, your employer did not ask you to do so. Required work is, as its name suggests, work that your employer requires you to do.
If your overtime work falls into either of these categories, your employer must pay you overtime for it. Failure to do so could make your employer vulnerable to an unpaid wages lawsuit.
What Are Common Examples of Working Off the Clock?
Off-the-clock work takes a variety of forms and does not necessarily have to be done out of the office. Below are a few common examples of what it looks like to work off the clock.
- Work performed post-shift for which you do not get paid, such as cleaning up, completing tasks you were supposed to complete during a single shift and returning to your office to drop off supplies
- Work you perform pre-shift for which you do not receive payment, such as loading up trucks, setting up a restaurant kitchen before the establishment opens and preparing a worksite
- Administrative work for which you do not receive payment, such as reviewing patient charts, undergoing training or completing payment
- Waiting for a customer to arrive or for your employer to give you an assignment and not getting paid for the time you wait
- Having to redo work or correct errors without receiving payment
In any of the above situations, you are entitled to compensation. This is the case even if you have yet to clock in or out, and if your employer does not require you to perform the work. The only instances in which you aren’t legally entitled to compensation is if your employer expressly prohibits off-the-clock work.
Does the FLSA Protect You?
The Fair Labor Standards Act is an act designed to protect workers in most states from unfair employment practices. Per the FLSA, employers must pay employees overtime wages for any work performed beyond the 40-hour a week limit. While the law covers most workers in most states, it does provide a few exemptions. The big two are as follows:
- Professionals, executives or administrative personnel who work in specific industries and under a commission-based contract
- Individuals who perform farm work as part of their employment agreements
The FLSA considers off-the-clock work the same as overtime. Thereby, the compensation for work performed off the clock is the same as the overtime rate.
How Can You Recover Payment for Off-the-Clock Work?
The best way to recover unpaid wages for the work you performed while off the clock is to consult with an experienced employment lawyer who can help you file a complaint and pursue it to the fullest. By filing a complaint with the Department of Labor, you stand to recover up to three years of unpaid wages for hours worked overtime or off the clock.
You may also be able to recover liquidated damages. These are essentially punitive damages the courts impose typically when a breach of contract occurs. Liquidated damages are the equivalent of your owed back pay. This means you can recover twice the entitled compensation. The only way your employer can avoid having to pay liquidated damages if it can show it acted in “good faith,” and that it made a special investigation into how the FLSA applies to particular employees. If you have to hire an attorney, and if you win the lawsuit, your employer may also have to cover your lawyer fees.
Do You Have a Claim as a Salaried Worker?
Generally speaking, salaried workers are exempt from the overtime protections the FLSA affords. Employers offer salaries to encourage workers to put forth the extra effort in their job role. Oftentimes, “extra effort” means working odd and extended hours.
However, if you make less than $455 a week, or $23,660 per year, your employer must pay you overtime for any work you do beyond 40 hours a week. If $23,660 per year seems low to you, you are not alone. In early 2019, the Department of Labor proposed increasing the threshold to $35,308, or $679 per week.
Work With an Experienced Local Lawyer
In the best-case scenario, your employer will have failed to realize that you were putting in overtime. Hence, the company would then pay you for the work you performed off the clock. In the next-best scenario, it will receive the complaint and, to avoid a further hassle, pay you what it owes you. In the worst-case scenario, your employer will fight you every step of the way and force you to pursue a claim.
Regardless of your employer’s response, you should, at the very least, consult with an employment attorney who can advise you on what and what not to do to exercise your rights and receive the wages to which you are entitled. Submit a request online or call us today at (866) 345-6784 to get in touch with an experienced lawyer in your area!