The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime, and other protections for workers. Violations of these rights are often considered ‘wage theft’, though wage theft can take other forms in addition to the protections afforded by the FLSA. Examples of wage theft include not paying employees minimum wage, illegal deductions, failure to pay overtime, and off the clock hours or work.

What Does the Term ‘Off the Clock’ Hours Mean?

Any work performed for an employer for which the employee is not getting paid and counting towards an employee’s weekly hours for overtime may be considered ‘off the clock’ work. Working ‘off the clock’ is still work and if you are not getting paid for that work, your employer may be violating the FLSA

Whether you’re working off the clock to move up the ladder or if you’re required to come in early or stay late, the Fair Labor Standards Act (FLSA)--which applies to most workers--says that "off the clock" work, work that is unpaid or doesn't count toward overtime, is often illegal.

What Is the Fair Labor Standards Act?

Most employees, especially those paid hourly, are covered by the FLSA, which establishes minimum wage, overtime, and other protections for workers. Employees who are exempt from the FLSA's requirements are typically executive, administrative, or professional employees or workers in certain roles that may be commission-based. If you fall into the non-exempt employee category, you must be paid for all hours worked.

The FLSA states that work that is “off-the-clock” is the same as overtime not compensated by an employer at a standard hourly wage. Federal law defines employment to include permit to work, or “suffer” as result of the activity. Where an employer requires or allows workers to work overtime, under U.S. law that overtime is usually due compensation.

An employer is also generally obliged to pay a worker whose work is suffered. Suffered work is when an employee works extra hours to assist co-workers at the consent of the employer, yet they are unrequired and unpaid.

Common Examples of Off the Clock Work

Unpaid Preparation and Post Shift Work

Setting up a dining room before a shift at a restaurant, moving or loading equipment onto a truck before work for the day are both examples of unpaid preparation work. Similarly, unpaid work post-shift, like finishing, cleaning, and returning equipment is off-the-clock. Unpaid ‘administrative' work, like completing paperwork, meeting with management, reviewing patient charts or undergoing training done on an employee's own time are also examples of activities you should be paid to do.

Correcting Mistakes and Waiting for Work

When an employee is instructed to rework a project without pay, that time to rework the project must be paid. Additionally, if an employee is awaiting work when the job is not yet available, like assignments or time that an employer has allowed an employee to wait to perform a task, thus counted as work, and should be paid. 

Get Help with a Wage Theft Issue

Not getting paid for time worked is a form of wage theft. If you're an employee who has been working off the clock, you may be eligible to file a claim and recover up to three years of back wages for unpaid hours or unpaid overtime along with other expenses or compensation. 

At Brandon J. Broderick, Attorney at Law, our award-winning employment law team has decades of experience helping employees assert their rights. We offer free consultations and a compassionate approach to client care. Let us help you recover the wages and compensation you’re owed. Contact us today.


Posted by: Brandon J. Bro…
Date: Thu, 03/31/2022 - 13:50

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