Advancing technology has made it easier for employees to work remotely, be it from home, restaurants, or remote offices. However, while this comes with flexibility and immeasurable convenience, some employers have taken advantage of this model, requiring their employees to work outside official working hours. According to the QuickBooks Time survey, half of the employees who responded said they worked during off-the-clock periods.
Unfortunately, failing to compensate employees for their time constitutes a violation of the Fair Labor Standards Act. Note that, like all other FLSA cases, any business claiming that they weren’t aware of this violation is not an acceptable excuse.
What is Off-The-Clock Work?
Off-the-clock work involves any work done beyond the official working hours without compensation or not included in the weekly hours clocked. The FLSA has explicit descriptions of what “hours worked” means. While there are a few gray areas, especially when it comes to traveling and training programs, any activity that benefits your business should be compensated.
Off-the-clock work often occurs when an employer requests an employee to perform some duties outside working hours. It can also occur if the employee doesn’t track their time spent on work and the employer allows such to happen. Both situations violate the FLSA laws, and employees can institute a legal suit with the help of employment lawyers.
Just to mention, the referenced FLSA laws state that employers should compensate non-exempt employees for all the hours worked. This includes the hours that the employee was required to be at work or on duty and any additional time worked. FLSA also considers on-call shifts and rest breaks as hours worked.
Non-exempt employees are entitled to minimum wages and overtime payments based on their employment contracts. On the other hand, exempt employees are not covered by the FLSA laws. According to a 2019 update, they are entitled to weekly wages of $684 and a salary wage for overtime hours. This makes exempt employees highly predisposed to occasional off-the-clock duties. However, employers should be cautious when classifying exempt and non-exempt employees.
Can Employees Volunteer to Work Off the Clock?
As mentioned, non-exempt employees should be paid for all their clocked hours and cannot volunteer to work overtime. Therefore, even if they volunteer, employers should compensate them for their time. Employers should not willingly allow or request non-exempt employees to volunteer.
The Fair Labor Relations Act provides strict guidelines on the definitions of internships and volunteer work. Generally, profit-making companies cannot use volunteers. Some public companies and non-profit making businesses can use volunteers, but employees cannot volunteer to work in situations that they would typically be paid.
Common Examples of Off-The-Work Violations
Performing work-related tasks before signing in, after signing out or during unpaid lunch breaks constitutes a violation. While employees might be thinking that they are helping their employers by putting in extra time, they contrastingly expose them to wage and hour liabilities. Common examples of off-the-work activities include;
- Pre-shift engagements where employees are asked to prepare before the shift. This includes loading, warming up machines or trucks, preparing worksite, and transferring equipment.
- Post-shift work such as cleaning the workspace, dropping off equipment at another site, and other activities that should be completed during the shift.
- Administrative work for officeholders, such as attending meetings, reviewing paperwork, training, and checking work emails.
- Revisions, such as correcting errors or redoing the project without compensation.
Possible Penalties for Encouraging or Overlooking Off-the-Work Calls
Employers who fail to compensate their employees for off-the-work engagements potentially face wage and hour lawsuits. With the help of employment lawyers, affected employees can demand a backdated 3 years of lost wages. The employer will also be subject to investigations by state agencies and DOL and incur legal fees associated with the suit.
That said, besides formulating an off-the-work policy, employers should leverage various options of tracking off-the-clock work. The easiest way to track such work is using mobile and cloud-based tracking solutions. Remote tracking makes it easy for employees to clock in and out. Employers can also easily monitor and set timelines according to their policies.
Employers should also take various steps to prevent legal suits resulting from off-the-work violations. Among them include ensuring that they understand employees covered by FLSA, monitoring work time closely, and training their employees, managers, and supervisors about these workplace issues.
Even if they volunteer, a business should pay its employees for off-the-clock work. To avoid these violations and possible legal ramifications, employers should develop an off-the-clock work policy that doesn’t permit employees to work off-the-clock and outline compensation mechanisms for those who work during this period. If you have been working off-the-clock as an employee, an employment attorney will help you identify if you are covered under the FLSA and in filing a claim.
Author | Emily Forbes
An Entrepreneur, Mother & A passionate tech writer in the technology industry!