An employment-law litigator with over 20 years’ experience, Steven Tindall is well-acquainted with navigating the ins-and-outs of the California labor code. His largest recovery in a single employment case is $29 million.
In California, an employer can’t force you to work off-the-clock. That’s illegal. All time you spend working must be paid. That’s true even if your employer didn’t authorize the extra time. Any time an employee spends on work, when the employer knew or should have known about it, must be compensated.
Employers in California sometimes force their workers to come in early but not clock in, or to stay late but clock out first. But some employers use more subtle means, such as assigning employees more work than they could possibly do during the normal work day. Neither is legal.
California off-the-clock work law doesn’t allow employers to get away with this conduct. Employees who work off-the-clock can sue to be paid for the hours their employer refuses to count. If the off-the-clock hours put the employee over 8 hours of work per day or 40 per week, California overtime law requires time-and-a-half or double time pay rates (1.5x or 2x the regular rate of pay).
Forced vs. Voluntary (But Unauthorized) Off-the-Clock Work | California employees who work off-the-clock typically fall into one of two situations. Either their employer forces them to work off-the-clock with explicit or implied threats of reprimand, or they choose to work off-the-clock without official authorization. We discuss both situations below:
Forced to work off-the-clock?
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California Off-the-Clock Law: Forced or Mandatory Off-the-Clock Work
Many employees want to know: can an employer make you work off-the-clock in California?
The answer is: no. It’s never legal for an employer to make a non-exempt California employee do off-the-clock work.
If your employer knows and understands California off-the-clock law and wants to violate it anyway, you’re in a tricky situation. You can demand you be paid for all hours worked, as is the right of all non-exempt employees in California, but employers sometimes retaliate against workers who assert their rights (even though retaliating is illegal).
Some employers will explicitly order you to work off-the-clock, such as to come in early before your shift officially starts. Some employers are savvier in their non-compliance with California labor law. These employers are subtler, often giving employees more work assignments or responsibilities than they could possibly complete in a standard 8-hour day. This forces employees to work off-the-clock to finish their unrealistically bloated workload.
Another tactic employers use to avoid California off-the-clock law is to misclassify workers as independent contractors. An employer might say, “I don’t want to pay you more than $120 per day, even if you work over 8 hours, so I’ll make you an independent contractor, and pay you a daily wage.” Much of the time, this isn’t legal. California independent contractor law forbids misclassifying workers to avoid paying them a guaranteed minimum wage for all hours worked.
Voluntary Off-the-Clock Work That Employers Don’t Know About or Authorize
Employers in California sometimes try to argue that they don’t have to pay their employees for off-the-clock work because the employee didn’t have authorization to work extra hours. These employers argue that if their employees want to work extra hours, it’ll be on their own dime.
But that’s not the law in California. The California Supreme Court has said that if an employer knows or should have known that an employee was working off-the-clock, and they “stood idly by,” the employer has to pay for those hours.
This rule stops employers from winning the argument that extra or overtime hours were unauthorized. If the employer required an employee to finish a workload that was impossible to complete in the allotted time, an employer may be required to pay for off-the-clock hours spent to finish the task. Often, the employer “should have known” that it wasn’t possible to finish in the allotted time.
Can you get in trouble for working off-the-clock?
You can get in trouble for working off-the-clock hours—not with the state of California, but with your employer. Many employers have employee handbooks or a clause in their standard employment contract saying that employees must receive authorization to work overtime hours. If an employee ignores an employer’s policies and never reports the hours, it’s possible the employer never finds out. But if the employer finds out, they may fire the employee. When a worker is an at-will employee, the employer can fire them for any reason (other than a protected status, such as race or gender).
So, you may get in trouble with your employer for working unauthorized hours. If your employer knew or should have known you were working those hours, they have to pay you for them. But as a result, employers are often strict about prohibiting employees from working extra hours.
What can you do if your employer forces you to work off-the-clock?
Unfortunately, you’re in a tricky situation where your employer doesn’t seem to want to comply with California employment law, or doesn’t know the requirements. Here are some of your options:
(1) Tell your employer they are violating California labor law
You can inform your employer of your right to be paid for off-the-clock hours and demand payment. But some employers may retaliate and fire employees who assert their rights, even if it’s illegal to retaliate under California law.
(2) Ignore the off-the-clock violation, for now, and sue for unpaid hours once you get a new job
This option may seem attractive because there’s less risk of losing your job from retaliation. But the limitations period may run out on some of your claims while you’re waiting. Suits for California labor code penalties, for example, have a one-year statute of limitations. You may be able to sue for some, but not all, of your hours.
(3) Sue now
Suing your employer has the benefit of preserving your claims, so the statute of limitations doesn’t run. But it’s a scary step to take. That said, if you sue, your employer’s actions will be under court-scrutiny, so it’s harder for them to retaliate against you without consequence.
When to sue is a tough decision to make. A California employment lawyer can help talk you through your options.
How much does an employer need to pay for off-the-clock hours in California?
For every hour of off-the-clock work that the employer knew or should have known about, the employer must pay at least California minimum wage ($11/hr) for each hour of work. If there’s an employment contract guaranteeing a higher rate, the employer may have to pay the employee’s regular rate of pay. And for off-the-clock hours that put the employee over 8 hours per day or 40 hours per week, the employer must pay California overtime rates (time-and-a-half or double time, depending on the circumstances).
Featured Members of Our Employment Law Practice
Prior to joining us at Gibbs Law Group LLP, Linda Lam worked at a national employment law firm, where she represented workers in lawsuits to recover unpaid wages and benefits.
Steve has prosecuted a variety of complex employment cases involving misclassification of independent contractors. He is fluent in English and Spanish.
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Gibbs Law Group LLP is consistently ranked on U.S. News’ list of “Best Law Firms.”
The attorneys in our California employment law practice have all be selected as 2018 Northern California Super Lawyers or Risings Stars.
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