September 20, 2018

What you need to know about minimizing ‘off-the-clock’ work

Many employees are engaging in “off-the-clock” work. This can expose employers to costly claims for unpaid wages and overtime by employees. Here are some ways that employers can limit “off-the-clock” work and reduce their exposure to potential claims.

What is “off-the-clock” work?

Today, courts are increasingly scrutinizing “off-the-clock” work, exposing employers to potential claims for uncompensated work time.

The Fair Labor Standards Act (FLSA) requires that covered non-exempt employees receive at least the minimum wage and overtime pay for hours worked over 40 in a workweek. In general, "hours worked" includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work. Also included is any additional time the employee is allowed (i.e., suffered or permitted) to work.  This can include many work tasks that take time to perform which is never recorded on a timesheet or tasks that are inadvertently overlooked or being performed without the employer’s direct knowledge, and therefore the work time is “off-the-clock”.

Examples of “off-the-clock” work

Common types of “off-the-clock” work employees may engage in include:

  • unpaid pre-shift preparation or post-shift cleanup
  • administrative work
  • revisions to previous work without pay
  • employees waiting for work in between assignments

For example, employees may come into work early to prepare for the day, read and respond to emails or perform other work tasks before clocking in.  Employees might also be staying at work after clocking out to complete a task, such as locking up the building, cleaning, or returning equipment. They may even bring projects home to complete or return a work call later in the evening after their shift has ended. All of these are examples of “off-the-clock” work for which an employer is potentially liable for violating the FLSA.

Some courts have adopted the FLSA de minimis exception, which states that insignificant amounts of time do not need to be counted as work time. Unfortunately, employers may not be protected by arguing the work was de minimis when they are consistently failing to pay employees for extra time worked, whether it was intentional or not.

What does this mean for employers, and how can they address this?

While employees may have some flexibility in their work schedules, it is ultimately the employer’s responsibility to ensure that employees are paid for all hours worked according to the FLSA or other applicable laws. Luckily, there are many ways that employers can avoid creating an environment in which employees end up doing “off-the-clock” work.

Here are some ideas to help prevent “off-the-clock” work:

  • Revise Policies: Employers may wish to review their policies and procedures for tracking time worked by employees, determine what activities they may be engaging in outside of their logged hours, and revise policies as needed to be clear about expectations for logging time, punching in and out, and/or prohibitions on working hours or overtime without supervisor approval.
  • Clearly Communicate Shift Times and Breaks: Employees who are unsure of scheduling details are more likely to work “off-the-clock” than employees who have clear schedules and break times. Employers should consider using a process or system to help effectively communicate information such as shift and break times with their employees.
  • Time Clocks: Employers can review their time clock policies and functionality and consider having time clocks round up the amount of time logged, as opposed to rounding down, if they are concerned that work-related tasks are being completed after clocking out. Time clocks can also be strategically located near entrances and exits so that employees will log their time immediately upon arriving to or leaving work, reducing the risk of long periods of time walking to and from clocks that may be uncompensated inadvertently.
  • Geo-Location Tools: Employers can consider keeping track of the amount of time employees spend at work by using geo-location functionality on a smartphone or device (with consent, of course!) to monitor how much time employees spend at a company location. Using geo-location tools can help determine if employees are spending more time at work beyond their shift times. If employers choose to go down this route, they should make sure to comply with all applicable privacy regulations.  
  • Limit Access to Work-Related Technology:  Employers can adopt policies to limit employee access to work-related technology, such as software programs or email, outside of company locations to prevent employees from being able to take a substantial amount of work home with them. They could also instruct employees not to check work-related emails or make work-related phone calls outside of working hours.
  • Train Managers: Employers can train managers on best practices for supervising employee work time and educate them about the risks of unpaid off-the-clock work.

While there may not be one easy solution to eliminating “off-the-clock” work, employers can become more mindful of the steps they can take to minimize their potential liability and prevent claims for unpaid wages or overtime.

Learn more from our compliance team about trending compliance and legislation topics at INSIGHTS 2018.

Disclaimer: The information provided in this post is provided for informational purposes only and should not be relied upon or construed as legal advice and does not create an attorney-client relationship. You should review with your legal advisors how the laws identified in this post may apply to your specific situation.

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