Working Off-the-Clock: Is It Ever Legal?

In today’s day and age, it’s hard to avoid off-the-clock work. The accelerated increase of technological developments and the rise of the mobile workforce have allowed for a work culture that is ‘always on.’

“The U.S. workplace has moved to a place where employees are expected to be available and on-call 24-7, even if that is not an official requirement of their job – whether the employee is exempt or non-exempt,” says Angela Reddock-Wright, an employment and labor law attorney with the Reddock Law Group.

“There is no longer a demarcation between work hours and non-work hours. The advancements in modern technology have not made this problem better, but worse.  This presents both practical work-life balance considerations as well as legal and risk management issues.”

With 64% of managers expecting employees to be reachable outside the office and employees now reportedly working an average of 47 hours per week, it’s no surprise more employees are taking work home and staying late after hours. However, what exactly constitutes “off-the-clock” work?

Illegal: Asking, requiring, or allowing employees to perform work without pay.

The FLSA (Fair Labor Standard Act) sets the rules and protections for most workers and requires that non-exempt employees be paid for all hours worked. All work done for an employer is compensable time and must be paid, regardless of the situation. Asking, requiring, or allowing employees to perform work without pay is a violation of the law.

Whether it be a model employee putting in additional hours to show their commitment, a supervisor asking an employee to stay late last-minute, or a project manager requesting an employee produce work over the weekend, all time worked must be paid.

Legal: Requesting employees to work out of the office.

Not all employees work in the office, and even the ones that do can sometimes be asked to work when they’re away, on vacation, or sick. Asking an employee to work additional time out of the office on occasion is perfectly legal as long as an employee agrees to perform the work and is compensated for all time worked.

Of course, if this becomes a habitual request, this may become problematic for the employee. Try to develop a work arrangement that benefits you both. Having a versatile timekeeping system can help employees clock in even when they’re away from the workplace like FingerCheck.

Illegal: Expecting or allowing employees to do work on their own time, free.

Many employees can pull up their laptops and phone and have a full workstation at their fingertips. However, this doesn’t mean that it should become the new norm for employees to constantly work out of the office as an extension of their job.

“From a legal and risk management perspective, employers can get into trouble for having their employees work off-the-clock, especially their hourly non-exempt workers,” says Reddock-Wright. “Even for the employer that creates the expectation, whether official or unofficial, that employees must be available and responsive at all times, it could create legal and risk management issues.”

To go a step further, even employees that want to work without pay shouldn’t be encouraged to. According to HR expert Stephanie Hammerwold, “That time your non-exempt employee spends responding to email while sitting on their couch at night needs to be paid. As technology allows for more and more possibilities for working from anywhere, employers need to be especially vigilant about all the resulting off-the-clock work.”

Legal: Working off-the-clock.

While most modern offices have an automated timekeeping system (like a biometric time clock), employers are allowed to let employees work without a time clock as long as they use a timekeeping method that is complete and accurate. For instance, the Department of Labor lists appointing a timekeeper to keep track of employees’ work hours or having workers write their own times on the records. FingerCheck allows employees to clock in via time clock, the internet, smartphone, twitter/text, and also allows employees to manually enter their hours (if enabled by their supervisor).

Dealing with it

Having employees perform work off-the-clock has its risks, the most serious of which include labor lawsuits and back pay. “In a day and age where employees are connected 24/7, issues arise daily whether, after hours, on-call, or late-night email calls and work are compensable,” says Richard Celler, Esquire and Managing Partner of Richard Celler Legal, P.A. “There are numerous class actions and lawsuits popping up daily on this issue.”

Instead, says Reddock-Wright, “Employers should stray away from walking this fine line and should see it as a critical part of their business bottom line to build a culture that provides and respects work-life balance for all employees.”

The bottom line, despite the nature of the modern workforce, all work done by a non-exempt, hourly employee is required to be paid. Whether it be preparation work before a shift, post-shift work, or any of the examples listed in this article, an employee must be paid for all time worked.