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”.
Common types of “off-the-clock” work employees may engage in include:
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.
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:
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.
Emerson is Compliance Counsel at Ceridian with many years of experience in U.S. and international legal research and writing. In his current role, Emerson tracks U.S. and international employment legislation impacting Ceridian products, works closely with development teams to integrate compliance changes into the company’s Dayforce HCM software, and conducts legal research as needed.View Collection