Under California wage and hour law, employers may not require employees to “work off the clock” without compensation.1 Work off the clock is work that employees do for their employer, with their employer’s knowledge, but without pay.
In the July 2018 case of Troester vs Starbucks, the California Supreme Court held that even working a few minutes before or after clocking in is compensable time for which a worker is entitled to compensation.
Sometimes employers or supervisors explicitly require work off the clock. In other cases, the employer subtly requests or merely encourages work off the clock.
An employer may be requiring or tolerating work off the clock to avoid paying an hourly employee for the full amount of time they are working–or to avoid paying employees overtime as required by California overtime laws.
Whatever the circumstances, California law requires that employers pay employees for work off the clock. A California employment attorney can help you enforce your rights to the pay you are entitled to.
What is “work off the clock” under California law?
“Work off the clock” is defined in California wage/hour law as work that an employee does without pay.2
Common forms of work off the clock include:
- Pre-shift work, such as time spent preparing a restaurant to open, preparing a worksite or preparing safety equipment.
- Post-shift work, such as clean-up, equipment storage or delivering equipment to a new location.
- Administrative work, such as completing paperwork or medical charts.
- Redoing a project or correcting mistakes at the employer’s request.
- Work that an employee does during a required meal or rest break.
Sometimes work off the clock is work that would have been compensated at the employee’s regular rate of pay. However, it is frequently work for which the employee would have been owed time and a half or double time overtime pay.
Does “work off the clock” always have to be requested by an employer?
Not all illegal work off the clock is explicitly requested by an employer. Many employers are vaguely familiar with California employment law and find more subtle ways to make employees do uncompensated work.
For example, employers may set up timesheets or time clocks so that employees can not “clock in” for pre-shift or post-shift work. They may discourage employees from reporting overtime.
Or they may simply require employees to do more tasks than they can do in their shift or in the hours they are supposed to work.
Do I have a “work off the clock” claim even if I am a salaried employee?
The answer is yes.
Every non-exempt employee in California is entitled to overtime compensation when they work more than eight hours in a workday, or 40 hours in a workweek.
And while many salaried employees are exempt employees under California’s white-collar exemption, many are not. The legal definition of an exempt employee does not hinge on whether s/he is paid a salary or an hourly wage.3
So if you are working more hours without additional pay, you could have an “off the clock” claim against your employer even if you receive a salary.
How can I bring an “off the clock” claim against my employer?
In order to successfully sue your employer for back pay due to work off the clock, you must be able to show all of the following:
- You performed work for your employer for which you did not receive compensation;
- Your employer knew or should have known that you were performing this work; and
- Your employer stood idly by–and did not either stop you from performing the work off the clock or do something to see that you were compensated for it.4
An experienced California employment lawyer can help you bring a suit against your employer for back pay you are owed, including overtime pay, for work off the clock. In cases involving a large employer and a systematic policy of requiring or encouraging work off the clock, a class action wage and hour suit may be the best way to vindicate your rights.
Also see our article on vacation pay.
Call us for help…
For questions about work off the clock in California employment law or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Work in Nevada? Read our article on Nevada off the clock labor laws.
- Adoma v. University of Phoenix, Inc. (E.D. Cal. 2010) 270 F.R.D. 543, 548. (“California law requires that an employer pay for all hours that it “engage[s], suffer[s], or permit[s]” an employee to work.”) But see Rodriguez vs Nike Retail Services Inc, (9th Circuit June 28, 2019) holding that “trifiling amounts of time” may not be compensable.
- Same. (“Thus, a plaintiff may establish liability for an off-the-clock claim by proving that (1) he performed work for which he did not receive compensation; (2) that defendants knew or should have known that plaintiff did so; but that (3) the defendants stood “idly by.””)
- See Labor Code 515 LC — Exemptions [from wage/hour laws and off the clock claims].
- Adoma v. University of Phoenix, Inc., endnote 1 above. See also Jimenez v. Allstate Ins. Co. (9th Cir. 2014) 765 F.3d 1161, 1165–66.