The law requires that employers accurately track the hours worked by non-exempt employees and that they pay for all hours actually worked. When employers fail to pay employees for all of the hours they work, employees are denied a fair day’s wage for a fair day’s work. Improperly accounting for hours worked is a serious violation of an employer’s duty and a violation of the Fair Labor Standards Act. These types of violations typically involve either “off the clock” unrecorded work or improper deductions from time that has been recorded.
What is “Off the Clock” Work?
Off the clock work are essential tasks performed by an employee or worker without receiving pay. Examples include:
- Booting up computers and logging in & out systems and programs
- Completing paperwork or reports – usually before or after a shift
- Reading company memos and updates
- Travel time between multiple work locations in the same day
- Attending meetings and required training programs
- Working through lunch breaks
- Putting on and taking off required protective gear before and after each shift or post-shift clean up
- On the employer’s premises waiting for and undergoing required exit searches of employee’s bags and personal items (in California)
Real World Case – Off the Clock Claim
Technicians working for a portable toilet company recently received a $7 million settlement for claims that they were required to perform work off the clock.
These technicians were responsible for transporting, lifting, installing and servicing portable toilets. The case claimed they typically worked 50 to 75 hours per week but rarely received overtime pay for the hours worked over 40. The “off the clock” violations claimed in the case included:
- only paying technicians for the first ten hours worked per day, although they were regularly required to work between twelve and fifteen hours every day and
- instructing the techs to only record their time Monday through Thursday, despite often being required to work Fridays and weekends.
What are Improper Time Deductions or Docking?
When pay for time worked is illegally taken from a worker, it is known as improper time deduction or docking. Examples include:
- Automatic deductions for meal or rest periods that are not actually taken or allowed
- Deductions from recorded time for pre or post shift duties
Real World Case – Improper Time Deductions
A jury found that the City of New York violated the FLSA by not paying EMTs and paramedics for the time spent working before and after assigned shifts. This ultimately lead to an award of $14.5 million to compensate for the time that was improperly deducted.
More than 2,500 EMTs and paramedics joined in the lawsuit, which claimed the city never paid them for 15 minutes prior to their tours used to prep their equipment, as well as the 15 minutes after every shift to re-stock their ambulances and exchange information with the next tour — even though they were logged into the electronic time keeping system for city employees, known as CityTime.
DOL Updates regarding Remote Working Arrangements – Work From Home & Time Tracking
With many employers implementing remote working arrangements (a/k/a Work From Home) in the wake of COVID-19, the U.S. Department of Labor’s (“DOL”) Wage and Hour Division has updated its guidance for employers related to tracking the hours worked by non-exempt employees.
The general rule has not changed – employers are required to pay employees for all hours actually worked, regardless of whether the hours were authorized or reported. This has been referred to in the law as work that an employer “suffers or permits”. In plain terms, it means that if an employer knows or has reason to believe that an employee is performing work, the time must be tracked and paid as hours worked. This applies even if the work is performed away from the employer’s worksite or premises, such as telework performed at the employee’s home.
In its guidance, the DOL states that “[i]f the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. An employer may have actual or constructive knowledge of additional unscheduled hours worked by their employees, and courts consider whether the employer should have acquired knowledge of such hours worked through reasonable diligence. Employers are not allowed to look the other way – they are required to exercise control to ensure that work is not performed that they do not wish to be performed. Exercising control over hours worked goes beyond having a policy that prohibits overtime work – it must be enforced and not undermined by piling on work that cannot possibly be completed in the time permitted.
“[A]n employer’s formal policy or process for reporting overtime will not protect the employer if the employer prevents or discourages accurate reporting in practice.”
What to Do If You Are Not Paid for All Hours Worked
If your boss requires or permits employees to work off the clock or “shaves time” by decreasing employees’ actual worktime, you and your coworkers could be missing out on significant regular and overtime wages. The first thing you should do is begin keeping your own accurate record of all time actually spent working. The next step should be to contact a lawyer who handles overtime pay and wage and hour cases to review your situation.
If you have questions or believe that you have been the victim of wage theft due to off the clock work or improper time deductions, contact us for a free and confidential review of your situation.
