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Is It Illegal to Work Off the Clock?

Is It Illegal to Work Off the Clock?

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Is It Illegal to Work Off the Clock?

According to the Fair Labor Standards Act (FLSA), yes, it is illegal for most employees to work off the clock. There are laws in place to protect hourly workers from being exploited and expected to work without pay. Even an hour or two every week can add up to thousands of dollars in lost wages over a person’s work career. Some employees may be worried about losing their job if they refuse to work off the clock, and some employees may not realize that all of the tasks they are fulfilling on their own time should be paid for. 

If you are a non-exempt hourly employee, it is never ok for you to work off the clock. If your employer is forcing you to work off the clock and is refusing to compensate you, you should contact a lawyer right away. You deserve to be paid for your work. Morgan & Morgan has been handling these types of claims for decades, and we would be honored to help you. Contact us today for a free and confidential case evaluation 

The Fair Labor Standards Act

The FLSA establishes requirements for minimum wage, overtime, and other forms of employee protections. It applies to most workers, but does include a few exemptions. Executive, professional, and administrative employees and those who work on commission are often exempt from FLSA requirements. These types of jobs are often salaried positions, which means the employee is paid a set amount regardless of the number of hours they work. There are also certain industries that are exempt, such as farm workers and taxicab drivers.

FLSA requires that any non-exempt employee be paid for all hours worked. Pre-work preparation, work set up, working hours, and post-work tasks are all included in “hours worked.” Employees must be paid at least the minimum wage for hours worked up to 40 hours per week. After 40 hours, workers must be paid overtime at a rate of one and a half times their normal hourly pay.

Is It Illegal to Work Off the Clock?

Performing any duties for an employer without being paid is working off the clock. Employers must pay workers when they “permit or allow them to work.” This means that employers must pay employees for the work they have allowed those employees to perform. Employers must also pay employees for “suffered work.” This means that when an employee has stayed to finish tasks or help coworkers that was not mandated by the employer, but was allowed by the employer, they still must be paid.

Common Examples of Working Off the Clock

It may seem obvious, but sometimes even employees do not realize that what they are doing is considered working off the clock. For all non-exempt employees, any tasks related to work should be considered work time and should be paid. If you’re wondering, “is it illegal to work off the clock, and in what circumstances,” we can provide some guidance. Some of the most common examples of working off the clock include:

  • Preparing for work – warming up or loading a truck, preparing a worksite for the day, pre-opening preparations in a restaurant or retail shop, transferring equipment to a worksite, turning on computers and other equipment
  • Post-shift work – cleaning up after the workday, completing tasks that should have been completed during the workday, transferring equipment or vehicles to a separate site, writing up reports or other end-of-day paperwork
  • Unpaid rework – reworking a project or task that was completed during working hours, but must be revised and is being done after working hours
  • Assisting coworkers – helping a coworker complete tasks after the employee has already clocked out and is not being paid to help
  • Unpaid administrative tasks – undergoing training, reading emails, returning phone calls, meeting with management, completing paperwork, reviewing patient charts
  • Waiting for more work – waiting for work to come in, waiting for customers to come in, waiting for trucks or deliveries to arrive
  • Working during unpaid breaks – performing work-related tasks while on an unpaid break, such as a lunch break, that is NOT paid for by the company
  • Multiple work locations – travel time between multiple work locations in the same day
  • Safety gear – putting on and taking off required protective gear before and after a shift

Why You Shouldn’t Work Off the Clock

Working off the clock is illegal. That is a major reason not to do it. But there are a few other reasons why you should not be working off the clock. In the end, it really does not help anyone. It will complicate working conditions and output expectations. It will also create a more stressful working environment for you as well as your coworkers and supervisor. 

  • You deserve to be paid for the work you do. Most people who work need their paycheck. You deserve to be paid for the time and hard work you put in. Remember that you are a valuable part of the company, and that value should be compensated. You have agreed to exchange your work for a certain amount of compensation. You should not give your employer more time than you are paid for.
  • It gives a false impression of how much work can be done. If you are working off the clock to finish projects and assignments, it gives the illusion that the amount of work you are producing can be completed within the hours you are reporting. Your supervisor needs to know what can be accomplished in a 40-hour work week. If you are being given too many tasks or the workload becomes too much for a single person, appropriate actions should be taken to reduce the workload or divide it among more people. If all the work is getting done, the company is less likely to hire additional staff because it appears that extra help is unnecessary.
  • It will negatively affect your coworkers. If your coworkers are following the law and company policies, they will likely not have the same level of output as someone working off the clock. Even if it is just a few extra hours a week, your manager will notice that you get more work done than your coworkers. This can cause many problems for you as well as your coworkers. Your boss will expect you to keep up that pace, and will also put pressure on your coworkers to produce the same amount of work in the same amount of time. If they do not work off the clock like you are, they will never be able to reach the same level of output.

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  • Can My Employer Make Me Work Off the Clock?

    No. It is illegal to ask an employee to work off the clock. Under no circumstances should you work off the clock. Even if your employer did not ask you to, but they are aware of your off-the-clock work and allow it, you should not perform the unpaid duties. If your employer asks you to work off the clock, you should gently remind them that you are not an exempt employee, and it is illegal for you to work off the clock. 

  • What Do I Do if I Have Been Working Off the Clock?

    If you have been pressured into working off the clock, you can file a complaint with the Department of Labor. The DOL’s Wage and Hour Division is responsible for administering and enforcing most work protection laws, including those that relate to off-the-clock work and overtime. Employees can seek unpaid wages going back up to three years. They may also be awarded liquidated damages. This basically doubles the amount due to the employee for hours worked off the clock. It is also possible the employer will have to pay for the employee’s legal fees involved with filing a complaint against them. 

  • Will I Lose My Job if I Report Off the Clock Work?

    Many states are employment-at-will. This means you can be fired for any reason your employer sees fit, as long as it is not for a discriminatory reason. Working off the clock, regardless of who approved it, is a liability for the company because it is illegal. Having employees who continuously work off the clock is bad for business and can result in steep penalties and fines for the company.

    In addition, there may be certain terms you agreed to when you were hired that you are now violating. Even if your manager asked you to work off the clock, or your manager knows about it and does nothing, the responsibility is on you to follow the rules and guidelines set by the company. Many companies will include sections in their policies and employee handbooks that cover working off the clock. They may put in writing that you must record all hours worked, that you will not work overtime without prior approval, and they can discipline and/or fire you for violating these guidelines. The best way to protect yourself and your job is to never work any hours off the clock and to follow all the legal employment regulations.

  • Do I Need a Lawyer if I Work Off the Clock?

    If you have worked off the clock and want to file a complaint against your employer, contacting a lawyer may be in your best interest. Showing that you were working off the clock, whether you were asked to or simply allowed to, can be difficult to prove. Gathering evidence, collecting timecard information, and reviewing security footage can strengthen your case, but this information may not be easily obtained without a lawyer’s assistance. 

  • Morgan & Morgan Is Here to Help

    If you have been working off the clock and want to file a claim against your employer, you may not know the first steps you should take. You might also be worried about your employment status and any repercussions you may face as a result of reporting off-the-clock work. The attorneys at Morgan & Morgan have years of experience helping employees get paid for every hour of working time. We stay current on all labor laws and we follow the major labor disputes across the country. We know how to deal with companies, and we know exactly what you should do to help prove your case. Contact Morgan & Morgan today to set up a consultation so we can discuss your options.

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Last updated on May 11, 2023

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