No, an employer cannot make you work off the clock without pay. The Fair Labor Standards Act (FLSA) and some state laws prohibit off-the-clock work or work performed while not clocked in.
Laws have been established to prevent workers from being abused and required to work for free. Overtime, even a few hours per day, can result in thousands of dollars in lost wages. Some workers might be concerned that they would lose their jobs if they decline to work after hours, and some workers might not be aware that all the duties they complete on their own time should be compensated.
It is never acceptable for hourly non-exempt workers to work before or after their scheduled shifts. All work should be compensated.
Employees should contact an attorney as soon as possible to protect their rights if their employer requires them to work hours without pay. The labor & employment attorneys at Bohrer Brady, LLC are experienced in off-the-clock litigation and can help assess whether you have a claim against your current or former employer.
What Are Some Examples of Off-the-Clock Work?
Off-the-clock work usually occurs at the end of the day or before a shift starts. Some employers require employees to perform work before clocking in or after clocking out to avoid paying wages, especially overtime wages. Off-the-clock work may also occur during unpaid meal periods or breaks or if you must work at home without pay.
Although some activities may only amount to a few minutes a day, off-the-clock work results in tremendous savings to a company over time or even a short period if the company has many employees. Some examples of off-the-clock work include the following:
- Checking emails and making calls before or after work or on days off;
- Completing work reports or company forms at home or after hours, or on days off;
- Traveling from one job site to another;
- Loading and unloading work trucks at the beginning or end of the day;
- Securing equipment at the end of a shift;
- Providing instructions or shift summaries to relief workers;
- Preparing a worksite;
- Purchasing or picking up equipment or material for a job site;
- Cleaning workspaces, clothing, or equipment;
- Attending meetings or training;
- Pre-shift safety and assignment meetings;
- Waiting for additional work at the job site;
- Putting on or taking off safety or protective equipment; and
- Running errands for an employer during lunch or after work.
What is the FLSA?
The FLSA is a federal statute that protects workers from abusive practices. The FLSA sets the minimum wage, overtime rules, and other employee rights. There are certain exceptions, but it generally applies to most employees.
Employees in executive, professional, and administrative positions are typically exempt from the FLSA, but only if they are paid on a salary basis. However, if your salary is reduced because of the quantity or quality of work, you may be entitled to off the clock pay and overtime wages. Thus, the FLSA requires all non-exempt workers to be compensated for all hours worked.
“Hours worked” refers to all pre-work, setup, working hours, and related responsibilities. Additionally, non-exempt employees must generally be paid overtime pay at a rate of 1.5 times their regular hourly wage after 40 hours in a workweek. Some states, such as California, have double-time laws if employees work more than a set number of hours a day or week.
What Can I Recover in a Lawsuit?
Employers who violate the FLSA are subject to damages, including unpaid overtime, minimum wages, and liquidated damages (typically double the unpaid wages). Employers are also responsible for paying the workers’ attorney’s fees and litigation costs for forcing them to pursue litigation. Thus, an employee usually has no out-of-pocket expense for pursuing a claim against the employer.
The statute of limitations for an FLSA claim is typically two (2) years; however, an employee can recover up to three (3) years of unpaid wages and liquidated damages if the company’s violation was willful, which means the business showed an intentional or reckless disregard of whether the company was violating the FLSA. A current or former employee can bring a lawsuit for unpaid wages.
Collective lawsuits are also a possibility. If an employer maintains a policy of not paying for off-the-clock work, employees who have encountered similar conditions may bring an FLSA collective action.
Can My Employer Retaliate Against Me for Filing an FLSA Claim?
No. Section 15(a)(3) of the FLSA makes it unlawful for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].”
Thus, altering an employee’s tasks, demoting, criticizing, or terminating an employee is unlawful if done in response to an employee asserting a wage and hour claim. Section 15(a)(3) of the FLSA also prohibits retaliation against former employees. Additional damages can be recovered by the employee for such actions.
Contact the Attorneys at Bohrer Brady, LLC Today
If your employer makes you work off-the-clock, know it is against the FLSA, and you could be compensated for it. Even if your employer tries to intimidate you, Bohrer Brady, LLC’s off-the-clock claims lawyers will advocate for you. Contact us today for a free initial consultation.