Meet Our Experts
Does responding to a work email while in line at the grocery store still count as work?
The answer is almost always “yes.” And those minutes add up. If you’re not paying your non-exempt employees for that off-the-clock time, you could be guilty of committing the second deadly sin: Overlooking or Encouraging Off-the-Clock Work.
The technology of today has made it easier than ever for employees to work off-the-clock, out of the office, and after hours. A recent study determined that more than 39 percent of working Americans use their cell phones to check and send emails outside of working hours – and that number is always growing. Unfortunately, overlooking that time (ie: not compensating the employee for that time) can result in some serious penalties.
Encouraging off-the-clock work by emailing urgent requests, frantically calling your employees, or texting them after hours only increases your liability in an FLSA lawsuit. “If a manager is aware of after-hours emails or texts, he or she should make sure the employee is compensated for their time,” says Staci Ketay Rotman, “it’s as simple as that.”
But what can you do if you’re not aware of the time worked? As always, ignorance is not an alibi – if an employee feels they deserve compensation for off-the-clock work, you could get hit with a hefty lawsuit. Fortunately, there are a few steps you can take to protect yourself, your company, and your employees from committing this deadly sin. We reached out to the nation’s top experts to get the answers to your most pressing off-the-clock work questions.
How will the new overtime regulations affect employees who tend to work off-the-clock?
The new overtime regulations could reclassify employees who are used to being exempt from overtime as non-exempt. Many exempt employees are used to working until the job is down with little regard to how many hours the job takes. These employees will have to get used to tracking their time — even when working outside of regular working hours.
What are the most common types of off-the-clock work violations?
- Pre-shift work where the employee is asked to set up before shift, loading or warming up trucks, transferring equipment or preparing a worksite.
- Post-shift work, including clean-up of workspace, equipment or clothing, finishing tasks that "should have" been completed during the shift, or returning to another site to drop off equipment.
- Administrative work, like completing paperwork, attending meetings, reviewing work documents or undergoing training, work emails or calls done on an employee's own time.
- Rework, such as when an employee is asked to redo a project or correct errors without pay.
- Waiting for work when none is immediately available. Time between assignments or time in which the employee is required or allowed to wait for a task count as work which must be paid.
- Working through unpaid lunch break performing work such as answering the phone, working on computer, answering client/customer questions or conducting sales.”
Employees might think they’re doing their employers a favor by working before or after hours, or through lunch, but they’re really just exposing their employer to wage and hour liability.
What are the ramifications of overlooking or encouraging off-the-clock work?
Employers who fail to pay employees for off-the-clock work risk lawsuits, investigations, and audits.
What penalties can employers expect for encouraging or failing to pay for off-the-clock work?
Failing to pay for off-the-clock work is a costly mistake – and employers who willfully violate the law will be liable for backpay going back three years rather than just two.
Should employers have an off-the-clock work policy?
Having an off-the-clock work policy ensures employees know exactly what’s expected of them and when they’re expected to work (or not work) – protecting employers from wage and hour lawsuits pertaining to off-the-clock work.
How has technology made it easier for employees to work off-the-clock?
Technology has made it easier than ever for employees to work after hours, but it’s also made it easier for employees to track every second worked. Employers should require employees to track time in and out of the office using a mobile time tracking solution.
Can employers reclassify an employee as exempt from overtime in order for them to do off-the-clock work?
Employees classified as “exempt” are paid on a salary basis – they get paid a set amount no matter how many hours they work. Employers can reclassify their employees as “exempt,” enabling them to do after hours work, but do so with caution; misclassification of non-exempt employees is yet another deadly sin.
Is overlooking off-the-clock work typically passive or actively encouraged? Are there different penalties for each situation?
Staci Ketay Rotman
Most employers simply don’t realize their employees are working off-the-clock or outside of working hours, but ignorance is not an alibi. Use time tracking software to ensure employees record (and are paid for) every second worked.
Are there gray areas in what is considered work? Or is it well defined?
There are plenty of gray areas when it comes to off-the-clock work. Was the employee required to be present? Did they log enough time to require off-the-clock work compensation? It’s always best to check with your employment counsel to determine whether or not an employee’s off-the-clock work is compensable.
What is the easiest way for employees to keep track of quick off-the-clock work, like checking email?
Find a mobile, cloud-based time tracking software that works for your business and ask your employees to track every second worked.
What typically triggers a lawsuit related to off-the-clock work?
Angry or unhappy employees file lawsuits because they feel they’ve been undercompensated or wronged by the employer. Nip these problems in the bud by focusing on compliance before the problem escalates to an FLSA claim.
- Have an off-the-clock work policy in place to ensure that your employees know exactly when they’re expected to work (or not work)
- Require your employees to track their hours worked (both in and out of working hours) using a mobile, cloud-based time tracking software
- Avoid risk by always paying employees for every second worked – even after hours
- Reclassify employees as “exempt” at your own risk – it may help eliminate off-the-clock work problems, but it could cause bigger misclassification problems down the line
- Focus on compliance NOW, before an unhappy employee comes forward with an off-the-clock work claim
Meet The Experts
Staci Ketay Rotman
Staci Ketay Rotman is the Community Investment Officer and Co-Chair of the Wage and Hour Practice Team at Franczek Radelet Attorneys and Counselors. She's the editor and co-author of the firm's wage and hour blog (wagehourinsights.com) and she has also co-authored a number of articles on wage and hour topics. Staci advises and represents employers in all aspects of labor and employment law.
Philip K. Miles
Philip Miles is an attorney with McQuaide Blasko in State College, Pennsylvania. Since joining the firm, Philip has concentrated his practice on labor and employment law. He and the firm's labor and employment law team represent clients ranging from individuals to small businesses to large employers with thousands of employees. Miles also publishes a highly regarded independent employment law blog (lawfficespace.com) featuring commentary on cases, current events, and other developments in the field of employment law.
Dena H. Sokolow
Dena H. Sokolow has more than 20 years of experience counseling and defending employers and management on a wide range of labor and employment matters. She partners with her clients (which range from startups to Fortune 500 companies) to best position them to avoid employment law claims or, at a minimum, put the company in the strongest position to defend such claims. She regularly conducts customized audits to ensure compliance with federal and state employment legal requirements (such as wage and hour practices) and conducts management and employee training on a variety of topics that are specifically tailored to each employer's policies, practices, and particular needs.