Off the Clock Work

Under the federal wage law, a non-exempt employee must be paid at least a minimum wage and overtime for all hours worked over 40 during a workweek.  Hours worked includes all time an employee is required to be on duty, on the employers’ premises or other place of work.  It also includes all other time the employee is allowed to work.  As the Department of Labor, Wage and Hour Division put it:

Employees "Suffered or Permitted" to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable. 


Working “off the clock” can occur in many different ways, including:

  1. The employee is required to clock out and complete a project;
  2. The employee is required to perform pre-shift work prior to clocking in;
  3. The employee is required to perform post-shift work after clocking out;
  4. The employee is required to answer calls, emails, and perform work after a work shift;
  5. The employee is required to meet a quota that is unattainable during shift hours, but is not allow to report that time;
  6. The employer automatically deducts time from the employee’s time card;
  7. The employee is required to wait for a call or task (engaged to wait);
  8. The employee is required to be on call and has restricted freedom while on call;
  9. The employer forges the employee’s time to show less time worked.


Not surprising the argument many employers make is that they did not know the employee was working off the clock.  Even when an employer claims it lacks knowledge of its employees working overtime but the evidence strongly supports an inference of deliberate ignorance, courts have held the employer liable for the overtime pay.  As one federal court put it, “[w]here…an employer knew or had reason to know that its employee underreported his hours, it cannot invoke equitable defenses based on that underreporting to bar the employee's FLSA claim.”

Unfortunately, many drivers and technicians who must wait for a job assignment are victims of working off the clock.  Frequently, these employees do not get paid for the time they spend between jobs even though they are hired to be available.  Moreover, employees who are required to work from home are often given unreasonable expectations and pushed into working off the clock.  Remote employees are susceptible to off the clock violations because the employer will typically send them emails or call them after shift hours, yet the employees are restricted on reporting such time. 

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