Founding partner of Gibbs Law Group LLP, Eric Gibbs has been selected for the peer-reviewed list of Best Lawyers every year since 2012.
Off-the-clock work is work performed outside of an employee’s normal working hours that is neither compensated nor counted toward an employee’s weekly hours for the purposes of overtime. Employees who perform work-related duties pre-shift (before clocking in) or post-shift (after clocking out) – either voluntarily or at the direction of their employer – are working off the clock and may be eligible for certain protections under federal and state labor law.
Federal and state labor laws prohibit employers from permitting employees to do off-the-clock work without pay. Employers must pay workers for all work that they knew about or should have known about.
Many employers look the other way while employees perform unpaid work voluntarily or under pressure. However, by law, employers are responsible for controlling when employees work, as well as maintaining records of all employee time spent on work-related tasks.
Some states have labor code penalties that apply if employers are mandating or reaping the benefits of off-the-clock work. The penalties under California off-the-clock work law, for example, are up to $200 per worker for every pay period during which off-the-clock work was performed.
Working Off-the-Clock Voluntarily or Being Forced to Work Off-the-Clock
When must off-the-clock work be compensated by an employer? The U.S. Department of Labor says that generally, an employer must compensate “all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work.”
Federal employment law, under the Fair Labor Standards Act, requires that employees be paid for all hours they are “suffered or permitted” to work. “Suffered” refers to hours an employee is forced to work. And “permitted” refers to hours that an employee works voluntarily, but the employer has knowledge that the employee is doing so, and doesn’t stop the employee.
Backpay for Off-the-Clock Work
Nonexempt employees who work off the clock with or without explicit instruction to do so may be eligible to receive back-pay and additional damages equal to the amount of back-pay for off-the-clock hours worked. Back-pay and damages may be awarded to employees even if an employer failed to maintain a record of when the employees worked and what duties were performed.
In general, “hours worked” includes all time an employee must be on duty, or at work (whether that’s at an office or variable job sites).
For example, pre- and post-shift work, work at home, and work during meal and rest breaks are often treated as off-the-clock by employers, but these hours must typically be paid under the Fair Labor Standards Act.
Examples of Off-the-Clock Work
Employees may underestimate the amount of time they spend performing compensable tasks off-the-clock.
Some examples of off-the-clock work which courts have deemed compensable include:
- Prep Work
Setting up a restaurant before a shift; Opening up shop, unlocking doors, turning on lights; Turning on or starting up computers or machinery
- Clean-Up Work
Cleaning up a restaurant after a shift; Putting away equipment; Re-stocking merchandise
- Unfinished Work
Completing tasks which “should have” been completed during normal work hours; Redoing projects to correct errors
- Administrative Work
Paperwork, meetings, or training performed outside of business hours
- Travel Time
Traveling to or from a job site; Traveling for work-related errands
- Waiting Time
Time between work assignments in which an employee is “engaged to wait,” for example, a receptionist reading a book while waiting for the phone to ring
- Donning and Doffing
Putting on or taking off required work clothing, uniforms, or personal protective equipment
Featured Members of Our Employment Law Practice
An employment-law litigator with over 20 years’ experience, Steven Tindall is well-acquainted with the intricacies of overtime law. His largest recovery in a single employment case is $29 million.
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.
Our Employment Law Practice
Gibbs Law Group LLP is consistently ranked on U.S. News’ list of “Best Law Firms.”
The attorneys in our employment law practice have all be selected as 2018 Northern California Super Lawyers or Risings Stars.
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