Should My Employer Pay Me If I Work Off the Clock?

By Ilona Demenina Anderson

Hourly employees must be paid for each hour (or fraction of an hour) they work. Some employers insist that their employees clock out at quitting time even if there is more work to be done. Those employers tell employees that they need to finish their work before they leave. They refuse to pay employees for the time they spend finishing their work after clocking out.

Hourly employees understand that it isn’t fair for a boss to expect them to work without pay. They might not understand that it is also illegal.

FLSA Time Keeping Requirements

A federal law called the Fair Labor Standards Act (FLSA) protects nearly all hourly employees. Very few businesses are exempt from the reach of the FLSA.

The FLSA requires employees to be paid a minimum wage. When they work more than 40 hours in a week, the FLSA requires employees to be paid overtime. To enforce those laws, employers are required to keep an honest record of the hours their employees work.

Many employers have their employees punch a time clock (or a computerized equivalent) to keep track of their hours. Some employers have employees keep a written log of their work time. Regardless of the method used, employers are responsible for maintaining a record of the hours their employees work.

Some employers generate the same time record for each hourly employee each week, regardless of the number of hours the employee works. The record might show that the employee worked 40 hours even if the employee worked 45 or 50 hours. That kind of dishonest timekeeping violates the FLSA. It also enables employers to steal overtime wages that they should be paying to their employees.

Employers are entitled to ask employees to work a fixed schedule, but if an employee deviates from that schedule by coming in early, working past quitting time, or working through lunch, the employer must keep a record of the actual hours worked. The employer must also pay for those hours of work.

Failing to Pay for “Off the Clock” Work

It does not matter whether businesses require or allow hourly employees to keep working after they have clocked out. Employees cannot volunteer to work at their regular job for free.

The FLSA requires employers to pay for hours that they know or should know an employee is working. They can’t close their eyes and pretend not to see an employee who keeps working after clocking out.

If an employer knows that an employee is working overtime and does not want to pay for that time, the employer must tell the employee to stop working. If the employer allows the employee to continue working, the employer must pay the employee for his or her overtime work.

Failing to Allow a Lunch Break

When it seems like there isn’t enough time in the day to get all the work done, employees sometimes work through lunch. Maybe they eat a sandwich at their desk while working. Maybe they skip lunch altogether.

Whether an employee volunteers to work though lunch or is expected to do so, employers are required to pay employees for the hours they spend working during a lunch break. An hourly employee’s lunch break can only be unpaid if the employee is relieved of all work responsibilities and does not, in fact, work.

Hourly workers can lose significant income if they are not paid for working through lunch. An employee who works a 40-hour week, excluding lunch, is entitled to overtime compensation for working during a lunch break. If the employee works a couple of unpaid hours each week, the employee is losing time-and-a-half compensation for those two hours. During the course of a year, those lost wages add up to a significant amount of money.

Shorting Hours

Some employers deliberately falsify time records to make it appear that employees are working fewer hours than they actually work. They clock the employee in and out at times the employer chooses, even if those times are not accurate. Or they change the time records that the employee makes.

Those employers are committing wage theft. The time records that employers keep must be accurate. Employers cannot “short” time in order to short a paycheck.

Shaving Hours

Suppose an employee works from 8:00 a.m. to 4:44 p.m. with a half hour lunch. The employee should be paid for 8 hours and 14 minutes of work. Some employers will “round” the time to the nearest half hour and pay for only 8 hours of work. That practice is known as “shaving time.”

Employers are allowed to round time, but not the nearest half hour. They can round to the nearest quarter hour, tenth of an hour, or five minutes. If they round to the nearest quarter hour, they can round down 1 to 7 minutes of work, but must round up 8 to 14 minutes of work.

Even when employers adopt a rounding scheme, they must not apply it in a way that cheats employees. For example, if an employer knows that employees consistently work an extra 5 minutes each day during a 5-day workweek, rounding down that time will deprive employees of 25 minutes of pay per week. When rounding down is not roughly offset by rounding up, a rounding practice may be unlawful.

Penalties for Wage Theft

When wage theft deprives an employee of overtime pay or of minimum wage for each hour worked, the employee is entitled to bring a claim against the employer for those unpaid wages. In an FLSA claim for unpaid minimum wage or overtime, the employee may be entitled to collect double the amount that the FLSA required the employer to pay.

When an employee prevails on an FLSA claim, the employee is entitled to recover attorney’s fees. That provision will often make it possible for an employee who has a meritorious case to find an employment lawyer who is willing to bring the claim. Any employee who has been working off the clock should explore potential remedies with an employment lawyer.

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