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Working off the clock is when a non-exempt employee works after clocking out, before clocking in, or during an unpaid break. Working off the clock violates the federal Fair Labor Standards Act (FLSA). Employers who require or permit their non-exempt employees to work off the clock can face a wage and hour lawsuit for back wages and other compensation.
What does it mean to “work off the clock”?
The definition of “working off the clock” is for a non-exempt worker to perform job duties during the time when he or she is not clocked in for work.
Non-exempt workers are employees who are paid by the hour. These hourly employees are protected by state and federal labor laws that guarantee them:
In contrast, exempt workers are salaried employees that fall into a particular exemption to these laws. They are exempt from these legal protections under state and federal wage and hour laws.
Does working off the clock violate the FLSA?
Yes. When a non-exempt employee works off the clock, it violates the FLSA. The employer may be liable for back wages, regardless of whether the employer knew or merely permitted the extra work.
The FLSA requires that all non-exempt workers be paid for all of the hours they work. They must receive at least the minimum wage for the time they spend on the job.1 If they work more than 40 hours in a workweek, they are entitled to overtime pay of one-and-one-half times their regular rate of pay.2
Both of these requirements demand an accurate tally of the hours worked. If employers were allowed to demand work after the employee punched the time clock or signed their timesheet, then they could avoid paying minimum wages or overtime.
Importantly, it does not matter whether the employer required off-the-clock work, knew about the extra work, or merely permitted it. All of these situations violate the FLSA. Even if the worker volunteered to work off the clock, it can still violate the FLSA if the employer allows it to happen.
What are some common types of violations?
Some common examples of working off the clock that violate the FLSA are:
- preparing for work,
- performing other pre-shift work, like unloading trucks or prepping the workstation,
- cleaning up after work,
- post-shift work, like cleaning the employer’s premises for next morning’s opening,
- performing rework, like revisions or fixing mistakes made during work,
- performing administrative work, like completing paperwork,
- undergoing job training,
- waiting for work to arrive,
- helping coworkers finish their job,
- traveling between different working locations or worksites,
- taking off or putting on any safety gear that is needed for work, and
- performing work-related tasks during an unpaid break, like a lunch break.
All of these examples involve employees who are performing work-related tasks without being paid to do so.
What if my employer forbids off-the-clock work?
Many non-exempt employees find themselves being told to work off the clock or forced to work after clocking out in order to finish their daily tasks. In many cases, these same workers signed employment contracts that require them to get prior approval before working overtime, and forbid them from working off the clock.
In these situations, the written agreement controls. If the worker stays late to finish job-related tasks, they are violating their employment agreement. They can be disciplined or even terminated for doing so.
However, workers in these situations often feel pressured to work off the clock in order to keep their job. This creates an impossible dilemma that benefits the employer, who receives unpaid work by the employee while retaining the ability to fire the worker if he or she demands their unpaid wages.
The most important thing that a worker can do in this situation is to see an employment lawyer from a reputable law firm.
What can workers do to recover unpaid wages?
Workers who performed work-related tasks while off the clock can file a wage and hour lawsuit against their employer for back pay. They can also file a complaint with the Wage and Hour Division of the Department of Labor (DOL) for violations of federal employment law.
Employees are entitled to recover significant civil penalties for the unpaid work they have performed while off the clock. Those penalties include:
- up to 3 years of back wages for unpaid hours or for unpaid overtime,
- liquidated damages equal to those back wages, and
- attorneys’ fees.
The combination of back wages and liquidated damages means that employees may be able to recover twice the amount that they should have been paid.
In many cases, the employee is not the only one who has been putting in extra hours after clocking out on their timecard. Where the practice of requiring work after working hours is widespread, aggrieved employees can file a class-action lawsuit for violations of federal law.
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About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
