Off-the-Clock Time: Being Helpful Or A Victim Of Wage Theft?

In California, all time you spend working must be paid. Some employees are properly exempt and paid a salary. For everyone else, the employee's time must be accurately tracked to ensure that the employee is paid for all the time they worked. Time that is not tracked, and does not show up on the employee's timecard or other time tracking system is sometimes referred to as 'off-the-clock' time. It is illegal for an employer to require an employee to work off the clock, and likewise illegal for the employer to fail to pay the employee for the time they worked if the employer knew that the work was occurring.

What Does 'Off-the-Clock' Time Actually Look Like?

Off-the-clock time can occur in many different situations. Below is a list of situations where off the clock work commonly occurs, and an example of each:

• Before clocking in: Work immediately before an employee clocks-in at the beginning of their shift (setting up for the day);
• After clocking out: Work immediately after an employee clocks-out at the end of their shift (cleaning up);
• Remote Work: Work when the employee is away from the workplace and not tracked (answering calls and emails at home);
• During Breaks: Work during a meal break (the employee clocks out for lunch, but is asked to help a customer during that lunch break);
• Altered Records: Work that was intentionally removed from time records (an employer logs in and alters or deletes time records, to reflect a shorter period of time worked than actually occurred);
• Ignored Tracking: Employment where time tracking is ignored entirely (an employer either does not track the time, or ignores whatever time is tracked, and instead pays employees according to what time they were scheduled to work, instead of the time actually worked).

In each of these circumstances, the employee performed work for the employer, but that time does not show up on the employee's timecard (or other time tracking system). That time is therefore 'off the clock' and the employee never receives payment for that time.

Mandated or Unauthorized Voluntary – Still Illegal

Some employers mistakenly believe they do not need to pay an employee for time worked off the clock, because they did not tell the employee to work that time. That is not the standard. An employer is obligated to pay for all time that an employee is "suffered or permitted to work, whether or not required to do so." (See e.g., ["If an employee works unauthorized overtime is the employer obligated to pay for it?"]; see also ["Thus, time spent doing work not requested by the employer, but still allowed, is generally hours worked, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done"].)

If work is being done by an employee, and the employer has reason to know about it, that time is properly compensable to the employee as time worked.

Cascading Consequences

Off-the-clock work generates a series of violations. First, and most obviously, the employee is owed payment for the time that they worked and were not paid. However, the violations compound from there.

The off-the-clock work did not appear on the employee's paystub. That means that the paystub was inaccurate, and may generate penalties owed by the employer for providing an inaccurate paystub. The off-the-clock work was not paid at all; in other words, it was paid at a rate of $0 per hour. Because minimum wage compliance checks every hour worked (and cannot be averaged), that means that the employer violated the minimum wage laws for the off the clock time – generating further penalties.

Additionally, adding that additional time into the total time worked by the employee may mean that the employee has worked overtime, or worked additional overtime. Payment is due for that overtime as well. Off-the-clock time during a break may also mean that break penalties are at issue. And if the employee has quit or left their job, then they have not been paid all of their wages (including the off-the-clock time) at the time of termination. That generates a further waiting time penalty.

As you can see, 5 minutes here or there can stack into claims, penalties, and attorney fees that are many times the cost of paying the time worked property in the first place.

Final Note

If you are an employee working off the clock, or an employer shaping payroll practices, it is essential that you review the applicable law. Consider consulting with an attorney or other professional who can provide guidance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.