Overtime FAQs - Is It Illegal to Work Off the Clock?

Although working off the clock is illegal, workers frequently put extra hours in without getting paid overtime. You may not even realize that an employer is exploiting you. Staying back after your shift has ended to finish some tasks, answering emails after work, or engaging in any other work activities without getting paid can constitute working off the clock.

If you are required to work without receiving adequate pay, an employment attorney at Morgan & Morgan can help you understand your rights, determine your options, and potentially file a lawsuit for back pay and other damages. Get started today and contact us for a free case evaluation.

What Is Working “Off the Clock”?

Working off the clock describes any unpaid work activity that is not counted towards an employee’s hours. While there could be some leeway when it comes to business travel and training, an employee should generally get paid when performing an activity that benefits their employer.

According to The Fair Labor Standards Act (FLSA), employees should receive at least the minimum wage and appropriate overtime rates for any hours worked over the regular 40-hour workweek. “Hours worked" generally includes any time the employee is:

• On duty
• On their employer's premises
• At another set place of work
• Allowed (“suffered” or “permitted”) to work

In other words, if an employer either requires or allows you to work, you should receive adequate compensation. An employer may also be required to pay overtime if attendance was not requested but allowed. For example, you worked additional hours to help or train a coworker. 

Common Types of Working Off the Clock

Illegally working off the clock can arise in a variety of circumstances. Common examples of working off the clock include:

Unpaid work after officially finishing a shift – This can include finishing any tasks that could not be completed during regular hours, such as cleaning up a job site, returning equipment, and others.

Unpaid preparation work before a shift – Unpaid preparation work can include setting up a dining room or restaurant, truck warming or loading cargo, or any other unpaid work before officially starting a shift.

Unpaid revisions or reworking – Unpaid rework such as an employee correcting mistakes or revising work in their own time constitutes working off the clock. 

Waiting for assignments or work projects – An employee who is required to wait for work or assignments that are not immediately available must generally be paid for their time. 

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. Our experienced employment attorneys can assess your claim and advise you comprehensively.

Who Can Working “Off the Clock” Be Legal? 

Most hourly employees are entitled to overtime pay. Salaried employees earning below a certain threshold, at the time of writing $684 per week or $35,568 per year, also generally have the right to receive overtime pay. 

Salaried employees earning more than $684 per week can be entitled to overtime pay unless they are exempt. 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. 

However, unscrupulous employers may deliberately misclassify employees as independent contractors or change their job titles to fall into an exempt category. This amounts to nothing other than wage theft. If you experienced misclassification, being denied overtime pay, or another type of wage theft, consider seeking legal advice to find out if you could be entitled to compensation. 

How an Employment Lawyer Can Help

Handling a wage claim against your employer can feel stressful and intimidating. If there is a lot of unpaid overtime money at stake or you have been fired after filing a wage claim, an experienced attorney can protect you and defend your rights. Ways in which a lawyer can help include:

Clarify Your Options

Suing your employer for violating labor laws can be one way of getting justice. However, you could have several other options, such as: 

• Filing a claim with your state’s labor department
• Negotiating an informal settlement with an employer 

Both of these options can potentially be quicker, cheaper, and less hassle than filing a lawsuit. However, in some cases going to court may be the only way to get justice and the damages you deserve. A seasoned wage and hour attorney can help you weigh all options and make an informed decision.  

Determine Whether You Have Case

An employment lawyer will tell you honestly and openly whether you have a case for a lawsuit and what your costs and benefits could amount to. Your attorney can also calculate your damages and inform you about what you could recover.

Gather Evidence Proving Your Claim

Your knowledge of having been treated unfairly and not receiving pay for all the hours you put in is not enough to hold up in court. Claimants have to prove a wage and hour claim with appropriate evidence. Moreover, if you are filing a lawsuit against an employer who retaliated against you, you will have to prove retaliation, which can be challenging. An employment lawyer can help you pull the required evidence together for building a case against your employer. They can also help calculate back pay and other damages owed to you.

Standing up against an unscrupulous employer who may have managed to dodge labor laws for years and could have several attorneys on retainer can be nerve-wracking. However, having a tenacious employment lawyer in your corner will help to level the playing field. A lawyer can give you peace of mind and help with all aspects of pursuing a claim against an unethical employer.