Is it Illegal to Work 'Off the Clock?'

Whether an ambitious employee stays late to finish a project or a worker is required to come in early to help set up a worksite, off-the-clock work — work that is unpaid or doesn't count toward overtime — is often illegal.

Wage and hours laws can be complex. Talk to an employment attorney if you need help understanding how laws for off-the-clock work and wage theft apply to your situation.

The Fair Labor Standards Act (FLSA), an important federal employment law that applies to most workers, requires that employers compensate employees with overtime pay when working more than 40 hours a week.

The Fair Labor Standards Act

The FLSA covers most employees. The workplace law establishes minimum wage, overtime, and other worker protections. But there are exemptions from these requirements. Employees exempt from the FLSA's requirements include:

• Executive
• Administrative
• Professionals
• Commission-based sales

The FLSA requires employers to pay non-exempt employees, typically hourly employees, for all their work hours.

What Does It Mean To Work off the Clock?

Work that is “off the clock” refers to unpaid wages for job duties or work completed for an employer. The extra hours are not counted toward a non-exempt worker’s workweek hours for overtime pay purposes. Federal law defines "employ" as "suffer or permit to work." If an employer requires or allows employees to work, that on-duty time generally requires compensation.

An employer may still need to compensate a worker for work categorized as suffered. Suffered work means the employee engages in work that isn't requested but allowed, such as working extra, unpaid hours to help co-workers.

Common Types of Off-the-Clock Work

Off-the-clock work can take various forms and can even include work done offsite. Common examples of off-the-clock work include allowing or requiring:

• Unpaid pre-shift work or preparation, such as setting up a restaurant before a shift, loading or warming up trucks, transferring equipment, or preparing a worksite
• Unpaid post-shift work, including clean up, finishing tasks that should have been completed during the shift, or returning to another job site to drop off equipment
• Unpaid administrative work, like completing paperwork, meeting with management, reviewing patient charts, or undergoing training done on an employee's time
• Unpaid rework, such as when an employee is asked to redo a project or correct errors without pay
• Waiting for work when none is immediately available. The time between assignments or time the employee is required or allowed to wait for a task counts as work that must be paid.

Remote Work and Working Off-the-Clock

The flexibility remote work offers can also blur the lines between work time and personal time. Off-the-clock work in a remote setting can look like:

• Being pressured to be available outside of scheduled work hours
• Doing work-related tasks outside of normal work hours
• Taking phone calls or responding to emails after hours
• Troubleshooting tech issues or setting up equipment outside of work time
• Participating in mandatory e-learning sessions, webinars, or job training outside of agreed-upon working hours

Some employers offer flexible work schedules, which can allow employees to more easily manage their work around personal commitments. This can also reduce the risk of working off the clock.

Employees should set boundaries, like turning off work notifications, powering down work cell phones, and not checking emails during personal time.

Recovering Back Wages for Off-the-Clock Work

Since off-the-clock work is often illegal, employees who file a complaint with the Department of Labor (DOL)—Wage and Hour Division (WHD) may be able to recover up to three years of back wages for unpaid hours or unpaid overtime. Employees may recover liquidated damages equal to what they're owed, allowing them to recoup double the back pay they're entitled to.

Such damages are typical and can only be avoided if an employer demonstrates good faith by conducting a special investigation into applying the FLSA to a specific type of employee. Employees may also recover attorney's fees if they win a claim for back pay.

Preventing Off-the-Clock Work

Allowing or requiring illegal off-the-clock work can result in significant liabilities for an employer. Some managers may think that as long as they aren't requiring employees to work off the clock, then extra work is fine. But that isn't the case.

Even the eager employee who wishes to go the extra mile by working unpaid can later change their mind and request back pay, including liquidated damages, for off-the-clock work. A cautious employer should actively manage employees' work and prohibit or prevent the request or allowance of unpaid work.

Employers should create an overtime pay policy. The policy should clearly define which employees the FLSA covers. It should establish explicit, written "work time" policies. Include the policy in the employee handbook and display it at clock-in stations.

Employers should closely monitor employee work time and timecards to ensure they properly pay workers for the number of hours they work.

They also should train employees, supervisors, and managers on the pitfalls of off-the-clock work.

Have You Been Working Off the Clock? Get Legal Help 

It's often illegal to work off the clock. If you're an employee who has been working off the clock, an attorney may be able to help.

Learn more by speaking with an employment lawyer in your area. An attorney can help you file a claim for back pay, understand whether you're covered by the FLSA, and answer your questions about your rights as a worker.