Off-the-clock work is work performed outside of an employee’s normal working hours that is neither compensated nor counted toward an employee’s weekly hours for the purposes of overtime. Employees who perform work-related duties pre-shift (before clocking in) or post-shift (after clocking out) – either voluntarily or at the direction of their employer – are working off the clock and may be eligible for certain protections under federal and state labor law.
Federal and state labor laws prohibit employers from permitting employees to do off-the-clock work without pay. Employers must pay workers for all work that they knew about or should have known about.
Employers are also required to provide overtime compensation to nonexempt employees at one-and-a-half times their regular rate of pay for every hour worked over 40 in a seven-day work week, even if these hours are worked off the clock.
Many employers look the other way while employees perform unpaid work voluntarily or under pressure. However, by law, employers are responsible for controlling when employees work, as well as maintaining records of employee time spent working off the clock performing compensable tasks.
Back-Pay for Working Off the Clock
Nonexempt employees who work off the clock with or without explicit instruction to do so may be eligible to receive back-pay and additional damages equal to the amount of back-pay for off-the-clock hours worked. Back-pay and damages may be awarded to employees even if an employer failed to maintain a record of when the employees worked and what duties were performed.
In general, “hours worked” includes all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work. Also included is any additional time the employee is allowed (i.e., suffered or permitted) to work.
For example, pre- and post-shift work, work at home, and work during meal and rest breaks are all considered hours worked under federal law and may qualify as off-the-clock work.
Working Off the Clock Without Pay?
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We Get Results for Employees
|Acosta||$9.9 million for unpaid overtime and business expenses|
|Spansion||$8.5 million for employees laid off without proper notice|
|Masco||Backpay for workers who were misclassified|
|Fleetwood||Backpay for employees laid off without proper notice|
|Cosmo||$1 million for merchandisers who were not compensated for off-the-clock work|
|First Franklin||Backpay for workers who were not paid overtime|
Off-the-Clock Work Examples
Employees may underestimate the amount of time they spend performing compensable tasks off-the-clock.
Some examples of off-the-clock work which courts have deemed compensable include:
- Prep Work
Setting up a restaurant before a shift; Opening up shop, unlocking doors, turning on lights; Turning on or starting up computers or machinery
- Clean-Up Work
Cleaning up a restaurant after a shift; Putting away equipment; Re-stocking merchandise
- Unfinished Work
Completing tasks which “should have” been completed during normal work hours; Redoing projects to correct errors
- Administrative Work
Paperwork, meetings, or training performed outside of business hours
- Travel Time
Traveling to or from a job site; Traveling for work-related errands
- Waiting Time
Time between work assignments in which an employee is “engaged to wait,” for example, a receptionist reading a book while waiting for the phone to ring
- Donning and Doffing
Putting on or taking off required work clothing, uniforms, or personal protective equipment
Our Employment Experience
Our employment attorneys have been representing classes of employees in state and federal litigation against their employers for over 20 years.
We have successfully litigated employment cases concerning unpaid overtime, meal breaks, and business expenses; employee misclassification; and mass layoffs without proper notice, recovering millions of dollars on behalf of our clients against some of the world’s largest corporations.
Girard Gibbs has been recognized a Tier-1 law firm by U.S. News – Best Lawyers consecutively since 2013, and founders Daniel Girard and Eric Gibbs have been named among the Best Lawyers in America consecutively since 2012.
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