Must-know facts about working off-the-clock

How often do you have to deal with additional job activities outside of your working hours, like checking work emails? This is one of the most common off-the-clock work activities. In fact, according to survey, 43% of American employees tend to check their work emails every few hours when they're off-duty

Must-know facts about working off-the-clock

What is off-the-clock work?

Off-the-clock work is the work employees perform outside of their working hours and for which they are not compensated. This type of labor is not contributing to overtime pay and can include any type of activity that benefits the employer and that counts as a part of the job. So, working off the clock covers work activities done outside of their official shifts (before or after official working hours).

According to the Fair Labor Standards Act, "such time counts as work time and must be included in FLSA pay computations, provided only that the employer knew or should have known that the employee was beginning work early (and, of course, to the extent that the employee spent pre-shift time actually performing work activities)". Of course, the same rule applies for working off the clock after shifts. Besides, the FLSA regulates that all non-exempt employees must be paid for all hours worked. Therefore, workers need to be compensated for their overtime, thus, off-the-clock work.

Now, the standard FLSA work period for seven consecutive days is 40 hours per week. Everything beyond these 40 hours counts as FLSA overtime.

And, the difference between exempt and non-exempt employees is whether they are being paid for overtime work. Exempt employees get salaries and they're not eligible to receive overtime pay. On the other hand, non-exempt employees are qualified for being paid overtime.

Since working off the clock means working more than 40 hours per week, the FLSA demands that "covered non-exempt employees receive at least the minimum wage and at least one and one-half times their regular rates ofF pay for hours worked over 40 in a workweek." But, there are several categories of workers that are not covered under this rule:

The most common types of off-the-clock work activities

Here are some of the most common types of working off the clock:

Be sure that the federal law in the USA doesn't demand lunch or coffee breaks. But, if employers choose to offer such breaks to their employees, these breaks are part of compensable work hours. Thus, lunch and coffee breaks have to be covered by the sum of hours worked per week. When it comes to lunch breaks (or Bona fide meal periods), as stated in the Electronic Code of Federal Regulations, "the employee must be completely relieved from duty for the purposes of eating regular meals". It is also noted that meal periods are not worktime. So, if you're having lunch at your desk instead of taking a lunch break, this means that you're still working.

Why is it bad to work off the clock?

Sometimes, your manager or your boss may ask you to stay a bit longer at the office, to take care of an additional task. Or, maybe you're overwhelmed with work, so you start your workday an hour earlier and burn the midnight oil. Even if these long hours are not bothering you, you should avoid working off the clock. If you work off the clock but you don't keep track of these hours, you can expose your employer to wage and hour liability.

Here's why: as stated in the FLSA overtime regulations, one of the FLSA overtime claims is the case of "employers failing to identify, record, or compensate "off-the-clock" hours spent by employees performing compensable, job-related activities." In other words, employers cannot refuse to pay for employee off-the-clock work.

In general, if you have no other option but to work off the clock, be sure to inform both your manager and your employer. Besides, you have to track these additional hours. You can use a time tracker such as Clockify for this purpose. Therefore, you'll get paid for working off the clock and your employer won't violate the FLSA regulations.

Apart from legal reasons, here's why you should reconsider working off the clock:

1. To prevent burnout and manage workload better

Let's say you have a lot on your plate and working off the clock is your only option to manage your workload. But, keeping up with this routine and not telling your manager that you're overwhelmed will only cause burnout. And as for your manager, if she doesn't know that you're working long hours, she won't be able to reorganize the workload within the team.

2. To regain equality within the team

Imagine this situation: you're working off the clock and not getting paid for it, plus, you're swamped with work. At the same time, your coworkers are clocking in regular hours and they're not as efficient as you are. Since your colleagues and your manager have no idea you're working off the clock, your coworkers can look like slackers compared to you.

The only way to avoid both situations is to stop working off the clock. If you can't cope with your tasks, talk to your manager and try to find the most suitable solution, the one that excludes off-the-clock work.

Off-the-clock work policies

Whether you're an employer, a manager, or an employee, everyone has their own rights and responsibilities when it comes to off-the-clock work. Let's take a closer look:

1. Your rights and responsibilities as an employer

Attorneys claim that encouraging off-the-clock work, by not paying your non-exempt employees for these work activities, is illegal. This rule applies to employers. Let's say you often email your employees outside of their working hours with urgent requests or call and text them after hours. If you don't pay your workers for working off the clock, you can expect an FLSA lawsuit from them.

Lawyers suggest that companies should have an off-the-clock work policy. As an employer, it's up to you to set out this policy and make it transparent for all employees. This policy should contain details about when employees are allowed to work overtime and off the clock. Besides, the policy should mandate recording and reporting overtime and off-the-clock work to managers.

Another valuable step you need to take, as an employer, is to organize training sessions for employers and their managers. If you'd like, you can also create a quiz afterward, to be sure that all employees clearly understand the policy.

Finally, you need to carefully monitor for any potential violations within the company.

2. Your rights and responsibilities as a manager

Since you're a manager, you need to be aware of any type of off-the-clock work that your employees are performing. Besides, you need to make sure that these employees get compensated for working off the clock.

Moreover, attorneys point out that sometimes managers are the ones who work off the clock. In this case, be sure that your employer knows that you've been working extra hours. Just like with employees, being compensated for off-the-clock work is mandatory for managers, too.

3. Your rights and responsibilities as an employee

If you're an employee, you need to follow the off-the-clock policy, if it's regulated by the company you work in. In general, be sure to record your hours when working off the clock by using an overtime tracker and always notify your manager.

But, if you weren't paid for working off the clock, you have the right to file a complaint with the Department of Labor. By the FLSA regulations, you can recover unpaid wages as far back as 3 years. Apart from that, you can get "liquidated damages" and recover your attorney's fees. If you'd like to learn more about this, check out the official website of the U.S. Department of Labor, where you can find out more details on how to file a complaint.

Tracking off-the-clock work under the FLSA

What you choose as a tool for tracking your off-the-clock work is up to you. The FLSA doesn't strictly demand time clocks.

But, when tracking off-the-clock time under the FLSA, there's another term you should be familiar with - de minimis time. These are "infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes". As such, these periods may be disregarded.

For example, your manager has assigned you a new job. You need to shift to another job area. Since you need some new tools for this job, you transport them to this area. The time you spent carrying these tools is de minimis (insignificant) time because it happened one time only.

Here are some other examples of de minimis:

Off-the-clock communication

To communicate with each other outside of their working hours, employees mostly use information communication technology devices (ICT), such as smartphones. These devices enable working off the clock, which sometimes leads to having unclear boundaries between work and free time. Apart from ICT, there are also ICT demands - a particular kind of work invasion that happens outside of working hours. ICT demands can cause weekly strains, like negative rumination, negative affect, and insomnia.

Now, what are the consequences of employees' weekly experiences of ICT demands? To find an answer to this question, a study analyzed elementary teachers. So, they asked 546 elementary teachers to complete a survey and write a weekly diary for 5 weeks.

Since the purpose of this study was to learn more about teachers' ICT demands, the participants had to rate how they experienced work-related ICT demands outside the working hours. These were the sentences the teachers were required to rate:

According to the results of this survey, during weeks when teachers got greater ICT demands, they had a greater chance to experience all three types of strains (negative work rumination, negative affect, and insomnia). Also, teachers who turned off their email alerts on their mobile phones had fewer ICT demands, compared with teachers who didn't turn off email alerts.

This study shows us that using ICT devices can sometimes have a negative impact on a person's wellbeing.

How worldwide countries prevent working off-the-clock?

One of the best ways to prevent working off-the-clock is to prohibit off-the-clock communication between employers and employees. Many countries around the world have already regulated this field, by proposing or adopting the right to disconnect.

The United States

In 2018, New York City Councilman Rafael L. Espinal proposed a "Right to Disconnect" bill. The proposed bill would apply to private employers and it would be illegal for them to require their employees to check their electronic communications off-duty. The employers would still have the right to call their employees after work, but workers wouldn't be obligated to answer.

France

Speaking of European countries, France was a pioneer in addressing the issue of disconnecting after work. In France, the right to disconnect was adopted in 2017 and it ensures disconnecting from work-related communication outside of working hours. This legal right applies to French companies that employ more than 50 workers.

Germany

Even though in Germany there are no legal regulations of off-the-clock communication, some German companies have decided to regulate this matter within their management. For example, Volkswagen turns off email servers from 6.15 pm to 7 am.

South Korea

Since 2018, the South Korean government has started the shutdown initiative. So, every Friday from 8 pm, all working computers get shut down, to prevent working overtime. However, not all employees have this privilege because 67.1% of government workers are exempt from this rule.

Philippines

Since 2017, there has been the right to disconnect in the Philippines, which requires employers to "establish the hours when employees are not supposed to send or answer work-related e-mails, texts, or calls". If employees choose not to answer the phone or reply to an email, they won't be disciplined.

Can you get fired for working off the clock?

You've seen why you should avoid working off the clock, but also what your rights and responsibilities are regarding this matter. But, can you actually get fired if you work off the clock?

This mostly depends on the company's policy and the employment contract. In some cases, companies can have a clause in their employment contract pointing out that employees must obtain authorization to work overtime. Thus, if an employee doesn't ask for authorization and works off the clock without reporting these hours, an employer can fire this worker.

But, can companies do that? If the FLSA determines that non-exempt employees must be compensated for all hours worked, what about working overtime and off the clock?

Here's what the FLSA regulations point out as one of the typical problems with overtime pay requirements:

"The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee's right to compensation for compensable overtime hours that are worked."

As you can see, not including overtime in standard contracts is not compliant with the FLSA.

To avoid getting in trouble for working off the clock, pay attention to what kind of contract you're signing with your new employer and whether the overtime requirement is included in your contract.

Overtime regulations vary from country to country. For example, in France, there's a 35-hour working week, so everything beyond that is considered overtime. If you'd like to learn more about overtime and average working hours around the globe, check out our in-depth article on this subject.
Average Working Hours (Statistical Data 2021)

Can your boss monitor what you do off the clock?

Nowadays, many employees have their work email accounts and communication apps on their private phones and computers, no matter whether they work remotely or in a traditional office setting. Therefore, it's likely that they'll hear an email or a chat notification, and respond to them, even outside their working hours.

But, apart from the fact that you should try to keep a healthy work-life balance, have you ever wondered about your employee rights? It's vital to know your privacy rights as an employee, and whether your boss can monitor you after your working hours.

Speaking of the private sector, there are many laws that forbid employers from intruding into their workers' lives outside working hours. Some state constitutions regulate this matter by having a right to privacy, which means that private employers are not allowed to look into their employees' off-duty activities.

For instance, when it comes to your private life, an employer cannot investigate, or access facts related to personal aspects of your private life. However, what's private and what's not can be a tricky matter.

Here's an example: an employee writes a public blog during her free time. Since the blog is public, it's not private, so anyone can access it and read it. But, what happens if she writes a private blog that's only available to several people? An employer can request to get access to this blog. In this case, an employer could be held responsible for intruding on an employee's privacy. On the other hand, what if an employee uses her work computer to log into her private blog? Well, an employee can't expect to retain her privacy since almost all work computers are being monitored by employers.

When it comes to off-duty activities of employees, be sure that there's an exception. If a worker, during his off-duty hours, gets in trouble for doing something illegal and if that illegal activity intervenes with his job, an employer has the right to step in. For instance, if a bus driver gets arrested for a DUI.

Apart from employees as individuals, I should also mention employee unions and their rights. Speaking of which, there is the National Labor Relations Act (NLRA). Under this act, an employer is not permitted to monitor union activities and also any off-the-job meetings and gatherings organized by unions. Besides, an employer is not allowed to send a supervisor to spy on employees from employee unions. By doing so, an employee violates the NLRA.

Conclusion

If you're a non-exempt employee, you must be paid for all hours worked, including your off-the-clock work. Working off the clock is not advisable, but if you have to do it, always remember to properly log in these hours and to inform your manager and boss. What happens if nobody knows about your off-the-clock work and you haven't tracked this time? Well, you can expose your employer to wage and hour liability.

Here's a brief overview of employer's, manager's, and employee's rights and responsibilities regarding off-the-clock work policy:

Since the subject of working off the clock raises many questions, this article also covered some other significant aspects, like those related to employee rights and off-the-clock communication.

References