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Off-the-Clock Work and Your Rights

by | Dec 18, 2023 | General Issues, Wage & Hour

Timecard sheet and pen

Introduction

Off-the-clock work is a form of wage theft that can be a hidden issue for many reasons. It often occurs when an employer expects certain tasks to be completed, but the employer does not allocate enough time in an employee’s set schedule of hours to reasonably allow for the required work to be completed.

It is important to address off-the-clock work because:

it is illegal, and you cannot volunteer to work off the clock;
it gives employers an unrealistic measure of the amount of work that should be completed in a given number of hours;
it does not count toward the calculation of overtime pay or towards vacation pay and other benefits.

This blog will briefly cover the basics regarding the nature of off-the-clock work, its impact on employees, and how you can fight back to get the compensation you deserve.

    Understanding Off-the-Clock Work

    Definition and Examples of Off-the-Clock Work

    “Off-the-clock” work means employment tasks and duties that employees perform outside of their working hours for which their employer does not compensate them. It can be any type of activity that benefits the employer and otherwise counts as a part of the job, such as:

    work activities done outside official shifts (before or after official working hours), without any compensation.
    administrative work, such as paperwork, meeting attendance, taking calls, responding to emails and other messaging,
    redoing work to fix errors or for some other reason;
    waiting for the next job assignment; and
    working during lunch breaks or other legally required break periods.

    See here for a listing of and links to Wage and Hour Division Fact Sheets covering examples of off-the-clock work in different industries.

      Seek Legal Action

      Legal counsel can help you understand your rights, available options, and advise you on gathering the necessary documents and witnesses to support your claim.

      Since 2001, the attorneys from Rothschild & Alwill, APC have dedicated themselves to workers needing legal assistance. Our experienced labor and employment lawyers can advise you on any potential legal claims. You deserve sound judgment, hard work, skilled representation, and to be treated with dignity during every step of the process.

      Email us or call or office in our Central Valley office in Bakersfield at (661-369-8510) or in Santa Barbara at (805-845-1190) to schedule an initial confidential consultation at no charge. Se habla Español.

      CONTACT US TODAY TO SCHEDULE YOUR FREE CONSULTATION

      The Legal Framework

      Overview of Relevant Labor Laws

      While certain executive, administrative, and professional employees are exempt from federal minimum wage and overtime pay requirements for employers (referred to hereafter as “exempt employees”), generally hourly workers are covered by the federal Fair Labor Standards Act(FLSA). See here for a chart of the types of employees who are exempt employees under California’s wage and hour laws. Non-exempt workers are prohibited by California law from being denied pay for time spent working. Even if the employee is off the clock, they must be paid for work done.

      California goes beyond federal law, stating that employers may be liable even if they do not explicitly tell employees to perform off-the-clock work. If they knew or should have known and did nothing to stop unpaid work, they may be liable.

      Off-the-clock work matters in fairly calculating overtime. The amount of compensation employees should receive cannot be determined without accurately knowing the number of hours worked.

      In California, most non-exempt employees must be paid 1.5 times their regular pay rate when they work more than 8 hours in a workday (“time and a half”). If the employee works more than 12 hours in any workday, they must be paid at least 2 times their regular pay rate (“double time”). Furthermore, on the seventh consecutive day of work in a workweek, most non-exempt employees must earn 1.5 times their regular pay rate for the first 8 hours worked. Any additional hours worked must be paid at least 2 times the regular pay rate. Failure to meet these requirements constitutes unpaid overtime.

      Consequences for Employers Who Violate Wage and Hour Laws

      The consequences for employers who violate wage and hour laws by encouraging and allowing off-the-clock can include claims of failure to pay regular and overtime wages and accompanying statutory and civil penalties. Employers who willfully or repeatedly violate the pay requirements of the FLSA are subject to a civil money penalty of up to $1,000 for each such violation. Moreover, willful violations of the FLSA may result in criminal prosecution and the violator fined up to $10,000. A second conviction may result in imprisonment.

      California law requires that an employer pay restitution to the employee for all the back wages owed, in addition to a civil penalty. These penalties vary depending on the nature and frequency of the violations.

      Potential Legal Remedies for Affected Employees

      California employers that allow employees to work off the clock may owe those employees back wages and other types of damages, depending on the circumstances. Courts may also award attorney fees and costs.

      Furthermore, California law prohibits employers from retaliating against employees for filing off-the-clock work claims and other wage theft complaints. If your employer retaliates against you – which may include firing, demotion, or other punishments – you can file a complaint for retaliation with California’s Labor Commissioner’s Retaliation Complaint Unit.

      How to Protect Your Rights

      Steps to Take if You Suspect Off-the-Clock Work

      If you believe your management is requiring or encouraging you to work off the clock, bring it to the attention of higher management or human resources. The situation could be amisunderstanding that may be easily corrected. In circumstances where your employer requires an amount that you cannot realistically complete in a 40-hour work week, talk to management or human resources about how you should prioritize your workload. Express your concerns in writing as a way to document them.

      Also, consider talking to your coworkers to see if they are experiencing the same issue(s). Addressing such issues as a group may cause the employer to pay more attention to them.

      Documenting and Reporting Off-the-Clock Work

      Recordkeeping is vital to supporting off-the-clock work claims and determining how much you’re owed. Examples of important records include time sheets/cards, paychecks/stubs, work schedules, emails or text messages, and any other documents that show your work hours and earnings. Be sure to document any instances where supervisors/managers specifically instruct employees to work off the clock or imply that they should do so.

      Seeking Legal Assistance from an Employment Attorney

      If your employer won’t correct the issue, you can file a complaint with the California Labor Commissioner.

      Should the Labor Commissioner’s Office not resolve your claim, or if your claim involves a significant amount of unpaid wages, you may need to file a lawsuit. Should you decide to do so, it is advisable to seek assistance from an attorney who knows how to handle off-the-clock work claims. A lawyer can help you understand your legal rights and available options and can also advise you on gathering the necessary documents and witnesses to support your claim.

      There are important deadlines for filing claims. Consulting with an experienced wage-and-hour law attorney will help you navigate these deadlines and review our options.

      Conclusion

      Do not put up with employer expectations/demands for off-the-clock work. To learn more about the compensation you’re entitled to for your work, contact the experienced employment attorneys at Rothschild & Alwill, APC. We have years of experience fighting for employees like you to be treated fairly by your employers and to get the results they deserve. Schedule your free, no-obligation initial consultation with an experienced employment law attorney, by contacting us online or calling us in Santa Barbara at 805-845-1190 or Bakersfield at 661-369-8510.