The Employment Laws on Working Off the Clock

Federal employment laws require employers to compensate employees for all time worked, with the exception of exceedingly brief periods of time that cannot reasonably be considered "work." Some employers get in the habit of asking employees to work "off the clock," but in most cases this is illegal. Employees should know their rights so that employers cannot take advantage of them in this way.

Work of Consequence

The Federal Labor Standards Act requires employees to be compensated for any "work of consequence." Thus, if an employee works at home or during her lunch hour, her employer must pay her. Work of consequence refers to work that requires effort or takes time away from other activities. For example, a 30-second phone call to ask where a file is, is not "work of consequence," but a lengthy conversation about how to handle a customer mentioned in the file is.

Three-Part Test

Federal courts apply a three-part test to determine whether off-the-clock work is work of consequence. If it would be difficult to record the off-the-clock time, such as if it was only a few minutes, if off-the clock time does not add up to a significant amount of time per pay period and off-the-clock activity does not happen regularly, then the work is not considered of consequence, and the employer does not have to pay the employee for it.

State Law

State laws may conflict with the federal prohibitions about off-the-clock work. For example, California law states that employees must be paid for any time that they are "under the employer's control." Workplace Today reports that the law is unclear about whether this requirement trumps the federal law. For example, some employers search employees' bags at the end of the day to ensure they aren't stealing company items, which brings up the question of whether employees must be paid for the time they spend waiting for the employer to check their bags.

Starting Early

Some workers come to work earlier than their shift is scheduled to begin. Employers may allow them to begin work right away; however, the employer must pay the employee for this time and may have to pay overtime if the employee works his entire shift plus the extra time. For example, if an employee comes to work an hour early, he must be compensated for that hour. Some employers violate this law by asking employees not to clock in until their shift begins.