Wage and Hour

Your Workplace Rights*

Working off the clock?  See below for help.  
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Are you really exempt?

The Fair Labor Standards Act (FLSA) requires that all covered, nonexempt employees be paid at least the minimum wage for all hours worked in their employ and that covered, nonexempt employees who work more than 40 hours in the workweek (7 consecutive 24-hour periods or 168 consecutive hours) receive at least one and one-half times their regular rate of pay for the overtime hours (hours worked over 40 in a workweek).

What Does Employ Mean?

The FLSA defines the term “employ” to include the words “suffer or permit to work”. Suffer or permit to work means that if an employer requires or allows employees to work, the time spent is generally deemed to be hours worked.

What Is Working Off The Clock?

Time spent doing work not requested by the employer, but still allowed by the employer, is generally considered hours worked, since the employer knows or has reason to believe that the employees are continuing to work off the clock and the employer is benefiting from the work being done off the clock. This time is commonly referred to or known as “working off the clock.”

Common examples of working off the clock or hours worked under the FLSA (for which overtime pay is generally due) might include:

• An employee who voluntarily continues to work at the end of regular working hours.
• An employee who needs to finish an assigned task, prepare reports, finish waiting on a customer or take care of a patient in an emergency.
• An employee who may take work home to complete in the evening or on weekends to meet a deadline.
• An employee who checks, reads and/or reviews work-related emails (whether on a handheld PDA or wireless telephone device or on a home computer, etc.), or listens to work-related voicemail messages while away from the office or workplace
• An employee who must correct mistakes in his or her work. The time must be treated as hours worked. The correction of errors, or “rework”, is hours worked, even when the employee voluntarily does the rework.
• An employee who waits to do work. Time which an employee is required to be at work or allowed to work for his or her employer is hours worked. A person hired to do nothing or to do nothing but wait for something to do or something to happen is still working. Employees subject to the FLSA must be paid for all the time spent in physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer of his business.
• An employee who spends time putting on or taking off (i.e., donning and doffing) protecting gear, clothing or uniforms (e.g., anti-static smocks, goggles, shoe strips, and hand strips) and waiting in line to have the gear, clothing or uniforms checked before they began their shifts.

Hours worked off the clock include all the time during which an employee is required or allowed to perform work for an employer, regardless of where the work is done, whether on the employer’s premises, at a designated work place, at home or at some other location.

It is the duty of management to exercise control over their employees and see that work is not performed off the clock if the employer does not want it to be performed. An employer cannot sit back and accept the benefits of an employee’s off the clock work without considering the time spent to be hours worked. Merely making a rule against such off the clock work is not enough. The employer has the power to enforce the off the clock rule and must make every effort to do so. Employees generally may not volunteer to perform work without the employer having to count the time as hours worked.

*  The information provided on this site is general in nature.  It cannot substitute for a thorough evaluation of the unique facts of your case.  Your case facts may point toward legal conclusions that differ from those summarized on this site.  We strongly recommend that you obtain an individualized review of your case facts, whether it be by us or other qualified employment law counsel.