“Is It Illegal to Work Off the Clock?” and Other Frequently Asked Questions About Overtime

Whether you’re hustling to finish up some emails after your shift or clocking in late because your manager told you to “just get started,” working off the clock happens more than it should—and it’s not always legal. 

In fact, many employers who allow or expect workers to put in unpaid time may be violating the law.

At Morgan & Morgan, we believe every worker deserves fair pay for every minute they work. Unfortunately, wage and hour violations happen across industries and affect countless hourly employees, especially in food service, retail, healthcare, and construction. 

If you believe you’ve been a victim of wage theft, contact Morgan & Morgan today for a free case evaluation to learn more about your legal options and if you have a valid claim.

Is It Illegal to Work Off the Clock?

Yes, in most cases, it is illegal for employers to require or even allow hourly employees to work off the clock.

The Fair Labor Standards Act (FLSA), a federal law passed in 1938, requires covered employers to pay employees at least the federal minimum wage for all hours worked, and time-and-a-half for any hours over 40 in a workweek. If your employer knows or has reason to believe you are working, they are obligated to compensate you for that time. This includes:

• Responding to emails or messages after hours
• Prepping before your shift (like setting up a workstation)
• Staying late to close or clean up
• Working through your break
• Attending mandatory training or meetings
• Being on duty
• Being on an employer's premises
• Being at another set place of work
• Allowed (“suffered” or “permitted”) to work

So whether it’s just 15 minutes here or 30 minutes there, you should be paid for every minute you’re performing duties for your employer, even if you weren’t officially “clocked in.”

What Counts as “Off the Clock” Work?

"Off the clock" work refers to any job-related activity an employee performs without compensation, usually outside of scheduled hours. Common examples include:

• Changing into a required uniform before clocking in
• Waiting for your turn to use equipment before your shift starts
• Completing paperwork at home or after hours
• Running errands for your boss during lunch breaks
• Fixing mistakes you made on your own time
• Unpaid work after officially finishing a shift 
• Unpaid preparation work before a shift 
• Unpaid revisions or reworking 
• Waiting for assignments or work projects
   

If your employer benefits from the task, you should be paid.

Working off the clock can arise in numerous other work situations such as attending meetings without getting paid, completing administrative work in one’s own time, attending unpaid training, and others. 

Working off the clock is wage theft. However, workers do not have to put up with exploitation and can fight the illegal practice of working off the clock. If you are affected, an employer could owe you back pay and other damages. 

I Wanted to Work Off the Clock Voluntarily. Is That Still Illegal?

Yes. Even if you volunteer to work late or come in early without asking for pay, your employer is still legally required to pay you. The FLSA is designed to protect workers from exploitation, and that includes protecting them from their own well-meaning work ethic.

Your employer cannot accept unpaid labor, even if you say you're okay with it.

What if I Agreed to Work Off the Clock?

There can be several reasons why employees may agree to work off the clock without pay, for example:

• A worker wants to go above and beyond 
• Unpaid overtime seems expected by supervisors
• Employees receive perks for working off the clock
• A new hire wants to make a good impression
• A worker may be too embarrassed to ask about overtime pay

Even if you agreed to volunteer your time, you and your employer might be breaking the law. Time worked should be recorded and paid. Therefore, it typically makes no difference whether you agreed to work off the clock or your employer refused to pay adequate overtime. An employer whose employees are working for free is violating FLSA law, and employees generally have legal recourse to recover the money owed to them.

Can My Employer Ask Me to Clock Out and Then Keep Working?

No. This is one of the clearest examples of an FLSA violation.

Employers may try to avoid paying overtime or keep labor costs down by instructing workers to clock out and then finish tasks like cleaning, restocking, or prepping for the next day. But once you're performing job duties, you are legally considered “on the clock,” regardless of what the punch card says.

If this happens to you, document it and speak with an employment attorney, you may be entitled to back pay and other damages.

What Are the Overtime Laws in the U.S.?

Under the FLSA, non-exempt employees must receive 1.5 times their regular hourly rate for all hours worked over 40 in a single workweek.

There is no requirement for overtime pay on weekends, holidays, or for night shifts unless those hours push your weekly total over 40.

States may have additional protections or stricter rules. For example, California requires daily overtime after 8 hours of work per day, and Alaska and Nevada have rules based on both daily and weekly thresholds. Some states also require double time after a certain number of hours

 

Who Is Exempt From Overtime Pay? When Can Working “Off the Clock” Be Legal?

Some workers are classified as “exempt” under the FLSA and are not entitled to overtime pay. These employees usually:

• Are paid a salary (not hourly)
• Earn at least $684 per week (as of 2024)
• Perform executive, administrative, or professional job duties
   

Exempt professionals can include, among others:

• Executives
• Administrators
• Teachers
• Artists
• IT professionals
• Outside sales representatives 
• Independent contractors

In some professions, putting extra hours in after or before work is somewhat expected. If your job falls into an exempt category, you are generally not entitled to overtime under federal and state employment regulations. 

That said, employers often misclassify workers as exempt to avoid paying overtime. For example, giving someone a manager title without real authority or requiring salaried employees to work 60-hour weeks without extra pay can be a red flag.

If you’re unsure whether your classification is legal, it’s worth a conversation with a legal expert.

If you experienced misclassification, being denied overtime pay, or another type of wage theft, contact Morgan & Morgan for a free case evaluation to learn more about your legal options.

Can I Be Fired for Complaining About Off-the-Clock Work?

No. It’s illegal for employers to retaliate against you for asserting your rights under the FLSA.

This means your boss can’t fire, demote, cut hours, or punish you in any way for:

• Asking about unpaid wages
• Reporting wage violations
• Participating in a wage and hour lawsuit
   

If you’ve experienced retaliation, Morgan & Morgan can help you file a retaliation claim in addition to a wage complaint.

At-Will States 

Most states, with the exception of Montana, adhere to some form of at-will employment law. In at-will states, an employer can generally fire a worker for any reason and at any time, provided they are not fired for an illegal reason such as discrimination or retaliation.

However, since an employer does not need to give a reason when firing a worker, retaliation can be tricky to prove. The burden will be on the employee to provide conclusive evidence that the employer’s real motive for mistreatment or termination was retaliation. 

You Could Sue a Retaliating Employer

If you got fired or experienced another retaliatory action by an employer after filing your wage claim, you could pursue a retaliation or wrongful termination claim in addition to your wage claim. Workers will have to prove that the employer’s harmful action was motivated by retaliation and that the harm suffered is tangible, such as: 

• A termination
• Withholding a promotion
• A demotion

If you believe that you got fired, demoted, or otherwise mistreated by your employer due to filing a wage claim, you should speak to an employment lawyer as soon as possible to protect your legal rights. Exploiting workers and retaliating against them is reprehensible as well as illegal. You could have legal recourse against an employer and recover damages. 

What Should I Do If I’ve Been Working Off the Clock?

If you suspect you’ve been shorted on your paycheck, here are the steps to take:

• Start documenting everything. Note the dates, times, tasks, and any instructions you received to work unpaid.
• Keep copies of schedules, emails, and text messages. This can be important evidence.
• Check your paystubs. Look for discrepancies between your actual hours worked and what’s recorded.
• Report the issue to HR or your manager. If you feel safe doing so, give them a chance to correct it.
• Contact an employment attorney. If your employer refuses to fix the problem or retaliates, you may have a case for back pay and damages.
   

At Morgan & Morgan, we’ve helped thousands of workers hold their employers accountable and recover the wages they’re owed.

What Damages Can I Recover in a Wage and Hour Lawsuit?

If your employer has violated wage laws, you may be entitled to:

• Back pay (unpaid wages)
• Overtime pay
• Liquidated damages (typically equal to back pay)
• Attorneys’ fees and costs
• Punitive damages, in some egregious cases
• Injunctive relief, to stop the employer from continuing illegal practices
   

And remember, under the FLSA, you don’t need to pay out of pocket to file a claim. At Morgan & Morgan, we work on a contingency basis, meaning we only get paid if you win.

How Long Do I Have to File a Wage Claim?

You generally have two years from the date of the violation to file an FLSA claim or three years if the violation was “willful,” meaning your employer knew or should have known they were breaking the law.

The clock is ticking. The longer you wait, the more of your lost wages may become unrecoverable.

Do I Have to Sue My Employer?

Not necessarily. Many wage disputes are resolved outside of court through negotiation or administrative complaints with the U.S. Department of Labor (DOL) or a state labor agency.

That said, if your employer refuses to cooperate, a lawsuit may be necessary to get the full compensation you deserve. And you don’t have to go it alone. Our employment law attorneys are here to guide you through the process and fight for your rights.

Can I File a Claim If I’m an Independent Contractor?

Unfortunately, the FLSA doesn’t cover independent contractors, but misclassification is a huge problem in today’s gig economy.

Despite what your boss says, if any of the following are true, you might not actually be an independent contractor:

• Work full time
• Follow company schedules and rules
• Use tools provided by the employer
• Can’t subcontract the work out
   

You may be entitled to minimum wage and overtime under the law. A legal review of your working relationship can determine your rights.

How Can Morgan & Morgan Help?

For over 35 years, Morgan & Morgan has fought For the People and recovered over $23 billion in the process.  As the nation’s largest personal injury law firm, our experienced employment attorneys have represented workers in some of the largest wage and hour lawsuits in the country.

Working hard shouldn’t mean getting taken advantage of. If you’re working off the clock, denied overtime pay, or pressured to stay quiet, you’re not alone—and you don’t have to fight back alone.

The law is on your side. So are we.

If you think your rights have been violated, contact Morgan & Morgan today. It costs nothing to find out if you have a case, and it could be the first step toward the justice and compensation you deserve.

You can get started in minutes with a free case evaluation.