Is Working Off the Clock Illegal?

Working off the clock is when you are an hourly employee and perform work

• after clocking out (such as after your shift is over or during your break),

• before clocking in,

• during a meal break, or

• during a rest break.

Working off the clock violates the federal Fair Labor Standards Act (FLSA). Employers who require or permit you to work off the clock can face a wage and hour lawsuit for back wages and other compensation.

You should never work off the clock because it is illegal, because your employer is taking advantage of you, and because it’s costing you money. You should stop working off the clock if you are currently doing so.

What does it mean to “work off the clock”?

The definition of “working off the clock” is when you – as a non-exempt (hourly) employee – perform job duties during the time when you are not clocked in for work.

If you are a non-exempt worker, you are likely paid by the hour and are protected by state and federal labor laws that guarantee you:

• minimum wages;

• overtime pay; and

• meal or rest breaks.

In contrast, exempt workers are often (but not always) salaried employees that fall into a particular exemption to these legal protections under state and federal wage and hour laws.

What are some common types of violations?

Some common examples of working off the clock that violate the FLSA are:

Preparing for work once you’re arrived at your place of employment.

Performing other pre-shift work, like unloading trucks or prepping the workstation.

Cleaning up your work area after work.

Post-shift work, like cleaning the employer’s premises for next morning’s opening.

Performing rework, like revisions or fixing mistakes made during work.

Performing administrative work, like completing paperwork.

Undergoing job training.

Waiting for tasks to be assigned.

Helping coworkers finish your job.

Traveling between different working locations or worksites.

Taking off or putting on any safety gear that is needed for work.

Performing work-related tasks during an unpaid break, like a lunch break.

All of these examples involve performing work-related tasks without being paid to do so.

Requiring employees to work off the clock violates the law.

If you are a non-exempt employee who is required to work off the clock, it violates federal law. The employer may be liable for back wages, regardless of whether the employer required off-the-clock work, knew it was happening without requiring it or merely permitted the extra work.

Federal and state wage laws require that you – as a non-exempt employee – be paid for all of the hours you work. You must receive at least the minimum wage for the time you spend on the job. If you work more than 40 hours in a workweek, you are entitled to overtime pay of one-and-one-half times your regular rate of pay.

Both of these requirements demand an accurate tally of the hours worked. If employers are allowed to demand work after you punched the time clock or signed your timesheet, then they could avoid paying minimum wages or overtime.

Importantly, it does not matter whether the employer required off-the-clock work, knew about the extra work, or merely permitted it. All of these situations violate the FLSA. Even if you volunteered to work off the clock, it can still violate the FLSA if the employer allows it to happen.

Can I be fired for refusing to work off the clock?

You may be afraid that your boss will fire you if you refuse to work off the clock. Your boss would be violating the FLSA. The FLSA makes it unlawful to discharge or discriminate against any employee who raises a violation of the FLSA.

Employees are protected regardless of whether the complaint is made orally or in writing (we suggest that you make it in writing or confirm in writing after talking with your boss). Complaints made to the Wage and Hour Division are protected, and most courts have ruled that internal complaints to an employer are also protected. Any employee who is “discharged or in any other manner discriminated against” because, for instance, They made a complaint may file a retaliation complaint with the Wage and Hour Division or may file a private cause of action seeking appropriate remedies including, but not limited to, employment, reinstatement, lost wages and an additional equal amount as liquidated damages.

Can I recover unpaid wages?

Yes. If you performed work-related tasks while off the clock, you can file a wage and hour lawsuit against your employer for back pay. You can also file a complaint with the Wage and Hour Division of the Department of Labor (DOL) for violations of federal employment law.

You are entitled to recover significant civil penalties for the unpaid work you have performed while off the clock. Those penalties include:

• up to 3 years of back wages for unpaid hours or for unpaid overtime,

• liquidated damages equal to those back wages, and

• attorneys’ fees.

The combination of back wages and penalties means that you may be able to recover twice the amount that you should have been paid.

You deserve to be paid.

You should talk to an employment lawyer if you have worked off the clock in the last three years. The employment law attorneys at Fiffik Law Group are available for a free consultation about your situation. We’ll help you recover the wages you are due