Is it Illegal to Work 'Off the Clock?'

Whether it's an ambitious employee staying late to finish a project or a worker 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. The Fair Labor Standards Act (FLSA), which applies to most workers, requires that employees be paid overtime when working beyond 40 hours a week for all work done for their employers.

The Fair Labor Standards Act

Most employees are covered by the FLSA, which establishes minimum wage, overtime, and other protections for workers. Employees who are exempt from the FLSA's requirements are typically executive, administrative, or professional employees or workers in certain industries such as commission-based sales and farm work. Under the FLSA, non-exempt employees must be paid for all hours worked.

What Does It Mean to Work 'Off the Clock?'

Work that is off the clock is any work done for an employer which isn't compensated and not counted towards a worker's weekly hours for overtime purposes. Federal law defines "employ" to include "suffer or permit to work." This means that if an employer requires or allows employees to work, that time generally requires compensation.

An employer may still be required to pay a worker whose work is "suffered." Suffered work means the employee engages in work that isn't requested but allowed, such as working extra, unpaid hours in order to help colleagues.

Common Types of Off the Clock Work

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

• Unpaid 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 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 own 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. Time between assignments or time in which the employee is required or allowed to wait for a task count as work that must be paid.

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 may be able to recover up to three years of back wages for unpaid hours or unpaid overtime. Employees may be able to recover liquidated damages equal to what they're owed, essentially allowing them to recoup double the back pay they're entitled to.

Such damages are the norm and can only be avoided by an employer showing that he or she acted in "good faith," having made a special investigation into the application of the FLSA to a particular type of employee. Employees may also be able to recover attorney's fees if they have won a claim for back pay.

Preventing Off the Clock Work

Allowing or requiring illegal off-the-clock work can result in large liabilities for an employer. While some managers may think that as long as they aren't requiring employees to work off the clock, then extra work is fine, that isn't the case. Even the eager employee who wishes to "go the extra mile" by working unpaid can later change his or her mind and request back pay, including liquidated damages, for off the clock work. A cautious employer should exercise control over employees' work and prevent unpaid work from being requested or allowed.

Employers can take steps to put a clearly defined policy in the employee handbook and post notices at clock-in stations to prevent off the clock work by having a clear understanding of which employees are covered by the FLSA, establishing clear, written "work time" policies, closely monitoring work time, and training both employees, supervisors, and managers about off the clock work.

Get Legal Help with Your Questions About Working Off the Clock

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 you file a claim for back pay, understand whether you're covered by the FLSA, or answer your questions about your rights as a worker. You can find out more today by speaking with an employment lawyer in your jurisdiction.