Have you ever asked an employee to show up early to set up for a project? How about to redo an assignment? Whether you are an employer or an employee, chances are that you’ve come across the following question at least once: “Is it illegal to work off the clock?” The short answer: most likely, yes, it is. Such work happens more often than people might expect. For example, it may include someone staying late and coming in early to finish a project. Here are four things you need to know about working off the clock.
1. Who the FLSA Covers
According to the Fair Labor Standards Act (FLSA), the federal law that governs off-the-clock work, employees are entitled to regular pay for all of the work they do and overtime pay when they work more than 40 hours a week for their employers. This act covers most workers; those not covered usually fall under the category of farm workers, salespeople who work for commission, executives, administrative personnel and professional workers. Most of these exempt employees receive set salaries no matter how many hours they work per week.
Employees who are covered under the FLSA must be paid at least the minimum wage and a minimum of one and a half times their usual rates when they go past 40 hours in a work week.
2. Type of Work that Counts
Hours worked, whether regular or overtime, typically include the times that employees need to be on duty or on the workplace premises. It usually does not matter if you did not require the employee to work as long as you provided the opportunity for the extra work. Employees who take advantage of these scenarios to help the business are entitled to the pay due them. Here are a few examples of off-the-clock work that count as situations where you need to pay employees:
- Preparing a diner before a shift
- Moving equipment
- Cleaning up after a shift
- Dropping off paperwork
- Completing training during non-work hours
- Revising or overhauling a project during non-work hours at the request of the employer
- Waiting for assignments or tasks
The FLSA makes no provisions as to meal and break requirements. However, some states do, so always check with state law. Women who are nursing are entitled to break time to express breast milk, but it does not need to be paid if no paid breaks exist already. If a nursing woman uses an already existing, compensated break to express breast milk, she must be compensated just like other employees are for their breaks. She must be under no expectation to work during that break time or else she is entitled to pay.
3. How to Fairly Monitor Work that Is Off the Clock
It is better to be safe than sorry when it comes to work that is off the clock; there have been situations in which enthusiastic employees took it upon themselves to complete projects on their own time and later asked for back pay. To best monitor any work that occurs off the clock, follow these steps:
- Delineate which employees are covered under the FLSA.
- Develop firm policies about work hours, and incorporate specific mentions about work that is off the clock.
- Train employees and supervisors at all levels on the work-hours policy, and certify their understanding by, for example, having them pass a quiz.
- Monitor for violations, and enforce your policy as necessary.
4. What Employees Can Do to Seek Compensation
An employee who wishes to seek compensation for work he did off the clock starts with a complaint to the Department of Labor. The law enables employees to get wages and overtime pay owed to them as far back as three years, and they may also qualify for damages and to get their attorneys’ fees paid.In sum, it is an employer’s responsibility to control off-the-clock work for FLSA employees. An employer cannot simply warn employees about the law and shrug if employees decide to work off the clock anyway. Employers must enforce the rules they set.
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.