Is Working Off the Clock Illegal?

Employers large and small have been known to ask or require their employees to perform work-related tasks off the clock. In other instances, employees might log extra hours to help customers or may assist co-workers with job-related emergencies. In any event, their employer might refuse to pay them because the extra time was never officially approved. In these instances, an employer would be violating state and federal labor laws.

As more and more employees engage in remote work and use personal technological devices for work-related tasks, the line between after-hours communication and unpaid work time becomes increasingly blurred. This becomes a problem when employers fail to compensate employees for hours they work or overtime they have lawfully earned.

If you believe your employer may owe you for unpaid overtime or hours worked, the Employment and Commerce Law Group in Nashville, TN urges you to contact our experienced attorneys now. We are prepared to work diligently as your personal advocates to hold your employer accountable and pursue the compensation you deserve.

What Does Working ‘Off the Clock’ Mean?

When an employee works “off the clock,” it means that they are working hours that are unpaid, excluded from the calculation of their overtime, or both. According to U.S. labor laws, it is illegal for most employees to work off the clock and for most employers to require their employees to perform off-the-clock labor.

Federal law requires employers to pay non-exempt employees for all the time they are “suffered or permitted to work.” When an employer requires or allows an employee to work certain hours, they are effectively “permitting” that employee to work and are required by law to compensate the employee for their hours worked.

When employees engage in work that is not requested by employers – such as helping out co-workers during unpaid extra work hours – employers must still pay employees whose hours of work are “suffered.”

The nature of off-the-clock work may vary by industry and employer, but any time you spend engaged in job-related activities that benefit your employer should be included in your hours worked and the pay you receive as a result.

Generally speaking, your “hours worked” include:

• Any time during which you are required to be on-duty for your job, whether or not you are actually at your place of work
• Any time during which you are allowed by your employer to work, whether or not you are actually required to be working productively at that time
• Any time that you perform work that is related to your job and benefits your employer, whether or not you were explicitly allowed to engage in that work

The bottom line is that your employer is required to pay you for any activity that is considered part of your job or otherwise benefits them directly. Any hours that you work beyond the standard 40-hour workweek are legally considered overtime hours, for which you are entitled to receive compensation equal to 1.5 times your normal hourly pay rate.

If you work off the clock and your employer does not compensate you for the additional time or overtime you deserve, they could be held legally responsible for wage theft.

FLSA and Working ‘Off the Clock’

Most employees are covered by the Fair Labor Standards Act (FLSA), which establishes legal standards that entitle workers to a minimum wage, overtime pay, and other work-related protections. Some of the most important provisions outlined in the FLSA include:

• The federal minimum wage – Since July 24, 2009, the federal minimum has been set at $7.25 per hour ($2.13 per hour for tipped employees). Some states have different minimum wage thresholds, and in those states, employees are entitled to whichever minimum wage is greater. Here in Tennessee, there is no state minimum wage, so the federal minimum wage rates apply.
• Overtime pay requirements – The FLSA requires employers to provide non-exempt employees with overtime pay for any hours worked beyond the legal 40-hour workweek. Your hourly overtime pay rate is equal to one and one-half times your regular hourly pay rate.
• Employer recordkeeping requirements – Your employer is required to keep track of any hours worked by their employees and their employee’s payment records. They must also display an official FLSA poster that outlines these recordkeeping requirements in a prominent workplace location.

The upshot of these requirements is that U.S. employers are expected to pay their employees a fair wage that meets or exceeds the federal minimum, provide overtime pay to employees for all hours they work beyond the standard 40-hour workweek, and keep time and pay records for anyone they employ. Therefore, per the FLSA, employers are not allowed to require employees to work off the clock or refuse to properly compensate them for any off-the-clock labor.

Common Types of ‘Off the Clock’ Work

There are many types of off-the-clock work, and even work that employees do at home or other non-workplace locations is sometimes considered off-the-clock work. Some of the most common examples of off-the-clock labor we see here at the Employment and Commerce Law Group include:

• Unpaid time spent preparing a worksite, setting up a restaurant or store before opening, loading or warming up delivery vehicles, or transporting work-related equipment before a shift
• Unpaid post-shift tasks such as cleaning up, dropping off work-related equipment, and taking time to finish work that should have been completed during a regular shift
• Unpaid time spent on administrative tasks like filling out paperwork, meeting with bosses or co-workers, reviewing work-related reports, or completing work-related training during an employee’s personal time
• Unpaid remedial work, such as hours that an employee is asked to spend redoing or correcting a project that an employer deems unsatisfactory
• Unpaid time spent waiting for work when no work is immediately available, including time in between work assignments or time in which employees must wait for a work-related task to become available
• Working through unpaid breaks or mealtimes to assist customers or clients with work-related issues or help co-workers with job-related emergencies

How to Recover Unpaid Wages After Working ‘Off the Clock’

Even if you were eager to go the extra mile for your employer when you first decided or agreed to work off the clock, you are legally entitled to be paid for your labor if it was job-related work that benefited your employer. As such, you may be eligible to request back pay for your unpaid hours worked by filing an unpaid wages claim.

If your employer legally owes you any wages for unpaid hours or overtime, you can file a wage and hour claim with the Tennessee Department of Labor and Workforce Development Division of Labor Standards. When you file an unpaid wages claim in Tennessee, the Division will first help you try to resolve the issue by dealing directly with your employer. In some cases, unpaid wages may be the result of a misunderstanding. Your employer may offer you a settlement that includes any back pay they owe you to avoid being sued for violating FLSA laws.

If you are unable to recover unpaid wages from your employer this way, the Division will likely refer you to Tennessee state court. Since the FLSA forbids employers from requiring or refusing to pay for off-the-clock work, you may be able to recover up to three years of back pay for any unpaid hours or overtime if you bring a successful unpaid wage lawsuit.

If you succeed in court, you could also be eligible to receive “liquidated damages” equal to the back pay you are owed. This would essentially leave you with double the compensation you would otherwise receive. At this stage, the only way an employer could avoid having to pay you liquidated damages would be to demonstrate that they acted in “good faith” when calculating your hours or pay.

How to Prove ‘Off the Clock’ Work

When you file an unpaid wage claim in Tennessee, the evidence that you provide to support your claim is critical. In some cases, you may be able to use your employer’s own legally required records to demonstrate unpaid hours worked or overtime. However, it’s common for unpaid work to go both undocumented and unpaid. You may need to look elsewhere for useful evidence in your wage claim dispute.

A knowledgeable employment law attorney can help you identify and preserve the following kinds of evidence to support your claim:

• Pay stubs, which will show what you were actually paid
• Timesheets, which reveal how your working hours were recorded by your employer
• Driving and GPS records, which can be used as supplemental evidence of your presence at your workplace or other work-related locations
• Text messages and cell phone records, which may reveal conversations that suggest you spent unpaid time doing work-related tasks
• W-2 records, which show the amount of taxes that were withheld from your annual wages when you filed federal and state income tax returns

The Employment and Commerce Law Group Is Here to Protect You

The experienced attorneys of the Employment and Commerce Law Group are dedicated to protecting the rights of Tennessee workers and helping them pursue the compensation that is rightfully theirs.

Our compassionate and focused team of lawyers is available to answer your questions in a free, confidential consultation. Contact us today to learn more about how we can help you.