Working outside of one’s scheduled work time without compensation is generally known as working “off- the-clock”. The United States Department of Labor (DOL) recognizes work off-the-clock as one of the most common violations of the Fair Labor Standards Act.

The Fair Labor Standards Act (FLSA) provides information about the type of work for which an employee must be compensated. Under the FLSA, a work day begins when an employee starts their “principal activity,” and ends when they finish their last principal activity of the day. The FLSA definition of a work day may be longer than an employee’s scheduled shift or normal office hours.

The California Industrial Welfare Commission (IWC) defines “hours worked” as the time during which an employee is subject to the control of an employer, and includes “all the time the employee is suffered or permitted to work, whether or not required to do so”.

The California Division of Labor Standards Enforcement (DLSE) has interpreted the definition of hours worked to extend beyond an employee’s scheduled shift, in various circumstances including instances involving pre and post-shift duties.

Types Of Compensable Time

There are various categories of compensable time that are recognized at both the federal and state levels, which include:

• Standby or On-call time
• Travel time
• Call Back time
• Rest periods
• Preparatory and Concluding activity time
• Lectures, meeting, and training time

What Are The Violations?

Listed below are some of the more common off-the-clock violations relating to the list of compensable time above:

• Requiring employees to work extra hours without pay.
• Requiring employees to perform work before or after they clock in for their shift.
• Failing to pay employees for the entire time they are performing work, not just the time they are “clocked in.”
• Automatically deducting a meal period from an employee’s hours when no meal period was actually taken.
• Deducting break time(s) from an employees work hours.
• Requesting that employees work on the weekend without clocking in.
• Failing to compensate employees who bring work home and continue to work outside of their “regular” workday.
• Failure to pay employees for pre- and post-shift work. These activities involve “donning” (putting on) or “doffing” (taking off) protective equipment or uniforms.

Donning, Doffing And The FLSA

The Fair Labor Standards Act states that employers are required to pay employees for each workday, starting from the time the employee begins their first “principal activity” and ending when the employee completes their last principal activity of the day. Courts have also decided that employers must pay employees for time spent occupied in pre-shift and/or post-shift activities that are an “integral and indispensable part of the principal activities,” which includes time spent “donning and doffing” required protective and safety gear.

Best Practices for Avoiding Off-The-Clock Work

To avoid costly litigation and the negative public attention that “work off-the-clock” cases bring, organizations should implement a well-publicized policy that advises employees that off-the-clock work is prohibited, and that any violations will lead to disciplinary action. The policy should also mention that it is a serious violation for any employee to instruct another employee to work off the clock and affected employees should report such violations immediately.

An effective policy clearly defines proper and improper conduct and provides employees with a means to report such misconduct or improper instruction. Managers’ and employees’ should be reminded often of the importance of proper timekeeping practices, that off-the-clock work is never permitted, and of the proper procedures to be used for addressing these issues.

The policy should give clear instruction to employees, as an employer’s effort to prevent off-the-clock work will be a key element of its affirmative defense of an off-the-clock work claim.

As always, it is imperative to know and understand all of the regulations that apply to your business at all levels: federal, state, and local. Failure to know and apply these regulations can lead to hefty fines.