Working off the clock in California – What is it and is it legal?

In California, the term “working off the clock” refers to non-exempt employees who perform (unpaid) work

1. after clocking out,
2. before clocking in, or
3. during unpaid rest and meal breaks.

Working off the clock violates both California law and the federal Fair Labor Standards Act (FLSA). Employers who require or permit you 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 when you – as a non-exempt employee in California – perform job duties during the time when you are not clocked in for work.

If you are a non-exempt worker, you are likely paid by the hour and are protected by California and federal labor laws that guarantee you:

• overtime pay,
• minimum wages, and
• meal and rest breaks.

In contrast, exempt workers are salaried employees that fall into a particular exemption to these legal protections under California and federal wage and hour laws.

Does working off the clock violate the law?

If you are a non-exempt employee who works off the clock, it violates California state law and the FLSA. The employer may be liable for back wages, regardless of whether the employer knew or merely permitted the extra work.

Federal and state law requires that you – as a non-exempt employee – be paid for all of the hours you work. You must receive at least the minimum wage for the time you spend on the job.¹ If you work more than 40 hours in a workweek, you are entitled to overtime pay of one-and-one-half times your 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 you punched the time clock or signed your 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 and California statutes. Even if you volunteered to work off the clock, it can still violate the law if the employer allows it to happen.

What are some common types of violations?

Some common examples of working off the clock that are illegal under California law 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 your 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 performing work-related tasks without being paid to do so.³

What if my employer forbids off-the-clock work?

You may find yourself being told to work off the clock or forced to work after clocking out in order to finish your daily tasks. In many cases, you signed employment contracts that require you to get prior approval before working overtime, and forbid you from working off the clock.

In these situations, the written agreement controls. If you stay late to finish job-related tasks, you are violating your employment agreement. You can be disciplined or even terminated for doing so.

However, you may feel pressured to work off the clock in order to keep your job. This creates an impossible dilemma that benefits the employer, who receives unpaid work by you while retaining the ability to fire you if you demand your unpaid wages.

The most important thing that you can do in this situation is to see an employment lawyer from a reputable law firm.

Do I get paid for being on-call?

If you are a non-exempt employee in California, you must get paid at least the minimum wage for all hours worked. This includes on-call time whether or not you end up having to work.

Note that answering customer calls after hours counts as “hours worked.” If you answer the call after work hours and while not being on-call, your employer can terminate you for working “off-the-clock.”⁴

What can I do to recover unpaid wages?

If you performed work-related tasks while off the clock, you can file a wage complaint with the California Labor Commissioner’s Office. Alternatively, you can file a complaint with the Wage and Hour Division of the Department of Labor (DOL).

After you file the wage complaint, the government agency will investigate and try to resolve the claim. If they cannot, you may be able to file a traditional wage and hour lawsuit to recover significant civil penalties for the unpaid work you 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.⁵

The combination of back wages and liquidated damages means that you may be able to recover twice the amount that you should have been paid.

In many cases, you are not the only one who has been putting in extra hours after clocking out on your 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.

Additional reading

For more in-depth information, refer to these scholarly articles:

• Off the Clock Work – Wage and Hour Law article on the legal issues re. working after hours.
• Never Off the Clock: The Legal Implications of Employees’ After Hours Work – Labor Law Journal.
• Working Off the Clock and Its Impact – Journal of Business Ethics.
• Rethinking the ClockWork of Work: Why Schedule Control May Pay Off at Work and at Home – Advances in Developing Human Resources.
• After hours teleworking and boundary management: Effects on work-family conflict – Work.

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