Work-Off-The-Clock in California – Is Your Employer Stealing Your Time?

California wage and hour laws forbid working “off-the-clock”, defined as doing a job for a company with their knowledge but without financial compensation. Employees who worked off the clock without pay can sue for back wages and pain and suffering.

Here are five key things to know:

1. Working just a few minutes before or after clocking in is time workers need to be paid for.¹
   
2. Working off the clock is prohibited whether the employer explicitly requires it or subtly encourages or tolerates it.
3. Workers often agree to work off the clock because they are scared of getting fired if they do not.
4. Workers who did “off the clock” work can sue their employer for back wages.
5. Salaried employees may have an “off the clock” claim as long as they are non-exempt.

A California labor and employment attorney can help you enforce your rights to the pay you are entitled to.

• 1. What is “work off the clock” under California law?
• 2. Does “work off the clock” always have to be requested by an employer?
• 3. Do I have a “work off the clock” claim even if I am a salaried employee?
• 4. How can I bring an “off the clock” claim against my employer?
• 5. Can I be fired for working extra time without permission?

1. What is “work off the clock” under California law?

“Work off the clock” is defined in California wage/hour law as work that an employee does without pay.²

Common forms of work off the clock include:

• Pre-shift work, such as time spent getting a restaurant ready to open, preparing a worksite or setting up safety equipment.
• Post-shift work, such as clean-up, storing equipment, or transferring equipment to a separate location.
• Administrative work, such as completing paperwork, time sheets, or medical charts.
• Redoing a work project or correcting errors at the boss’s request.
• Being on-call or on standby (learn more about on-call pay).
• Work that an employee does during a required meal or rest break.

Sometimes work off the clock is work that would have been compensated at the employee’s regular rate of pay. However, it is frequently work for which the employee would have been owed time and a half or double time overtime pay.

2. Does “work off the clock” always have to be requested by an employer?

Not all illegal work off the clock is explicitly requested or forced by an employer. Many employers are vaguely familiar with California employment law and find more subtle ways to make employees do uncompensated work.

For example, employers may set up timesheets or time clocks preventing employees from being able to “clock in” for pre-shift or post-shift tasks. They may discourage workers from reporting their overtime work.

Or they may simply require employees to do more tasks than they can do in their shift or in the hours they are supposed to work. Certain employers even purposely misclassify employees as independent contractors to get out of paying overtime.

The only time employers are not financially responsible for extra work is if they had no idea – and should not have reasonably known – that the worker was voluntarily putting in extra time. Employers who knowingly allow workers to put in extra time have to pay them for that time.

3. Do I have a “work off the clock” claim even if I am a salaried employee?

The answer is yes.

Every non-exempt employee in California is entitled to overtime compensation when they work more than eight hours in a workday, or 40 hours in a workweek.

While many salaried employees are exempt employees under California’s white-collar exemption, many are not.³

So if you are working more hours without additional pay, you could have an “off the clock” claim against your employer even if you receive a salary.

4. How can I bring an “off the clock” claim against my employer?

In order to successfully sue your employer for back pay due to work off the clock, you must be able to show all of the following:

1. You performed work for your employer for which you did not receive compensation;
2. Your employer knew or should have known that you were performing this work; and
3. Your employer stood idly by–and did not either stop you from performing the work off the clock or do something to see that you were compensated for it.⁴

Here at Shouse Law Group, we have brought countless wage and hour lawsuits against employers who cheated out clients out of pay – including overtime pay and off-the-clock pay – they rightfully earned. In our experience with cases involving a large employer and a systematic policy of requiring or encouraging work off the clock, a class action wage and hour suit may be the best way to vindicate your rights.

Just do not wait too long to contact us about bring a lawsuit. The statute of limitations for filing a wage claim is typically three years after the violation. In certain labor violation cases, the statute of limitations is only a year or shorter.⁵

Also see our article on vacation pay.

5. Can I be fired for working extra time without permission?

Yes. It sounds counterintuitive, but employers can terminate you or otherwise discipline you for working extra hours without their authorization. This policy may be included in your employee handbook.

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