However, the type of off-the-clock work can also vary based on the industry and job duties of an employee. “They don’t realize that it’s a huge no-no and could expose their employer to wage and hour liability.” “Oftentimes, the employees think they’re helping by putting in the extra time,” he explains. Philip said these two types were the first to come to mind. Another common example is performing work during an unpaid meal break. One common example of off-the-clock work includes performing work before clocking in or after clocking out. The policy can also outline guidelines on disciplinary action if an employee or manager violates the policy.Ĭonsult with your employment counsel as you build your policy to ensure it doesn’t violate federal, state, or local laws. You can also differentiate between exempt and non-exempt employees if both types are working at your business.Īlso consider including guidelines for managers, as they should be expected not to request non-exempt employees to work off the clock. “The policy should explain when employees are permitted to work overtime and/or off-the-clock, and explain what authorization is required prior to such work,” notes Philip Miles. You can include examples of prohibited off-the-clock work, such as checking work emails at home or working through an unpaid lunch break. Your policy should outline your expectations in requiring all non-exempt employees to track all hours worked. Misclassification can result in its own FLSA violation.Īn example of an off-the-clock work policy is one that prevents non-exempt employees from performing any work duties while not tracking hours. As a result, they may be more likely to perform occasional work duties “off the clock.” However, businesses should be cautious of misclassifying employees as exempt. Exempt workers are also exempt from overtime pay and are often (but not always) paid a salary wage. They also must make more than $684 per week ($35,568 per year), as per the 2019 update to the overtime salary threshold. Exempt workers fall outside of the job duties the FLSA covers. Nonexempt workers are entitled to the minimum wage and overtime pay based on their salary and job duties. The FLSA also considers rest breaks and on-call shifts on the employer’s premises as hours worked. The FLSA says the workweek includes “all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace.” The FLSA’s definition also includes any additional time the employee is allowed to work. The FLSA requires employers to pay all nonexempt employees for their hours worked. Both circumstances could be a violation of the FLSA. Similarly, an employer may request an employee perform work duties off the clock. Off-the-clock work may happen when an employee is not tracking their time spent on work activities, but their employer allows it to happen. “Work that is ‘off the clock’ is any work performed for an employer that is not compensated and not counted towards a worker’s weekly hours for overtime purposes,” explains Sokolow. But, in general, any activity an employee performs that benefits their employer should be paid. ” There are some grey areas when it comes to training programs and types of travel. The FLSA has explicit definitions of what constitutes “ hours worked. 1Įmployees work off the clock when they continue to work despite not receiving compensation for their time. We reached out to top wage and labor law experts to get the answers to your most pressing questions about working off the clock. Fortunately, you can protect yourself, your company, and your employees from committing potential FLSA violations. Encouraging off-the-clock work may increase a business’s liability in an FLSA lawsuit.īut what can you do if you’re not aware of the time worked? As in all cases with the FLSA, ignorance is not an acceptable alibi. Unfortunately, overlooking and not compensating employees for their time can result in some serious penalties. Half of employees say they’ve worked while on paid time off, according to the QuickBooks Time 2019 PTO survey. Technology has made it easier than ever for employees to work off the clock, out of the office, and after hours. If you’re not paying your nonexempt employees for that off-the-clock time, you could be violating the Fair Labor Standards Act (FLSA). Even if answering an email only takes 5 minutes, those minutes add up. If an employee responds to a work email while they’re off the clock, does it still count as compensable work? The answer is almost always yes.
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