Working “Off the Clock”: Legal or Illegal?
Off the Clock Work: It’s a Trickier Question Than You Might Think and It Could Lead to Big Damages for an Employee
If you are an hourly wage employee, the Fair Labor Standards Act mandates that you are paid for every hour you work for an Employer. If you work more than forty (40) hours in one workweek, you are entitled to be paid overtime for those hours exceeding 40 hours.
The Concept of “Suffered or Permitted”
The law applies even in cases where your employer doesn’t specifically ask you to work off the clock. Your employer may ask you to do certain tasks which cannot be performed without exceeding your normal 40 hours. In fact, in some cases, you may have a claim for backpay (wages you were owed but not paid) or overtime even if the employer was not fully aware you were working more than 40 hours a week in order to complete all tasks. An employer is liable to an employee for all hours that employee is “suffered or permitted” to work. Courts have long held employers responsible for managing the work of its employees, including recording the hours worked by an employee. If an employee is regularly required to spend extra hours to perform one or more of their job duties, the employer may be found to have “suffered” or “permitted” the employee to work those hours and must pay for that time at either the employee’s regular hourly rate or, if applicable, at the overtime rate.
Common Examples of Off the Clock Work
Off the clock work can take on various forms and can even include work done away from the regular workplace. For example, if an employer requires an employee to prepare a worksite or set up equipment before the employee’s regular shift, the employee may be entitled to be paid for that time. Likewise, if an employer requires an employee to clean up a work area or return equipment to its another location after that employee’s regular shift, (even if it the employer alleges it should have been done during the shift), the employee may have a claim for backpay and/or overtime. Being asked to correct errors without pay, attend administrative meetings without pay, attend training sessions, or complete paperwork without pay can also give rise to an employee’s claim for backpay and/or overtime.
Even an overeager employee attempting to impress an employer by working unpaid and off the clock may one day have a claim for back pay and or overtime.
Claims by Employees Can Lead to Big Awards and Stiff Penalties
Employers should take steps to prevent off the clock work by establishing clear, written policies on work time, monitoring work time, and training employees and supervisors on the concept of off the clock work and when it might be illegal.
If an employee knows he or she has been required or permitted to perform off the clock work, they should file a claim with the Department of Labor. If successful, an employee is entitled to backpay for every regular unpaid hour worked and overtime pay for every unpaid hour worked outside of a 40-hour workweek. In fact, it is standard for the award to include liquidated damages equal to the amount of the award so an employee actually gets paid double for the off the clock hours. In addition, if an employee is successful, they are entitled to have their attorney’s fees paid by the employer.
If you feel you have been required to perform work off the clock and you were not paid, you should contact a qualified attorney to assist you with your claim. At The Crone Firm, we have several experienced attorneys who can advise you and assist you in recovering the amounts owed to you.