Working off-the-clock: why it’s illegal & how to prevent it

How often do you check your email even after you finish working? Did you know that spending time in your inbox when you shouldn’t be working is a common off-the-clock work activity? In fact, a survey, showed that 43% of American employees checked their work emails every few hours when they were off-duty in 2019.

The pandemic didn’t reverse this trend, so the number of emails sent after hours increased by 8.3% in 2020. But, is working off-the-clock a trend that we should continue to follow?

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 does not contribute to overtime pay. It can include any type of activity that benefits the employer and counts as a part of the job. So, working off-the-clock covers work activities done outside official shifts (before or after official working hours), without any compensation.

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

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

• Pre-shift work: activities like truck warming or loading, worksite preparation, or carrying job equipment.
• Post-shift work: cleaning up the workspace, equipment, and tools, finishing tasks that should be done by the end of the shift, or returning equipment.
• Administrative work: doing paperwork, attending meetings, reviewing work documents, taking work calls and answering work emails, outside of employee's working hours.
• Rework: when employees are required to redo the project or fix project errors without getting paid.
• Waiting for the next job assignment/project: when workers have to wait for their next tasks or projects.
• Working during lunch breaks: when, instead of taking a lunch break, employees have to take care of assignments such as answering the phone, working on a computer, or replying to customers'/clients' questions.

US federal law doesn’t enforce lunch or coffee breaks. But, certain states have laws that require rest periods. So it’s always best to check your state laws to see whether employees are entitled to a break.

Still, regardless of the federal law, employers might choose to offer breaks to their employees. In that case, breaks up to 20 minutes are part of compensable work hours, and they have to be covered by the sum of hours worked per week.

But, keep in mind that if your employer offers you a lunch break, you “must be completely relieved from duty for the purposes of eating regular meals". Otherwise, your employee could be charged for violating the Code of Federal Regulations.

Working off-the-clock laws

According to the Fair Labor Standards Act, working off-the-clock "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)".

The same rule applies for working off-the-clock after shifts.

The FLSA also regulates that all non-exempt employees must be paid for all hours worked, including overtime and off-the-clock work.

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

Since working off-the-clock means working more than 40 hours per week, the FLSA demands that non-exempt employees "receive at least the minimum wage and at least one and one-half times their regular rates of pay for hours worked over 40 in a workweek."

Exempt employees on the other hand, are not eligible to get overtime pay.

Working off-the-clock laws for employers

Employers who often send emails or text to their employees outside their working hours while not paying them for working off-the-clock risk a potential FLSA violation.

Encouraging off-the-clock work while not paying your non-exempt employees for these activities is illegal.

To avoid legal consequences, lawyers suggest that companies should have a transparent off-the-clock work policy.

This policy should:

• Contain details on when employees are allowed to work overtime and off-the -clock, and
• Mandate managers to record and report overtime and off-the-clock work.

To make sure everyone clearly understands overtime and off-the-clock work policies, it's best to organize training sessions for employees and monitor any potential violations within the company.

Working off-the-clock laws for managers

If 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, sometimes, managers are the ones who work off-the-clock.

In this case, they should make sure the employer knows they've been working extra hours.

Just like employees, managers need to be compensated for their off-the-clock work too.

Working off-the-clock laws for employees

If you're an employee, you need to follow your company's off-the-clock policy.

The best option is to record your hours whenever you work off-the-clock by using an overtime tracker.

You should also remember to notify your manager of any off-the-clock hours worked.

In case 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.

Working off-the-clock FAQ for employees

If you have ever considered staying up late just to meet a deadline, you must have had dozens of questions regarding the decision to work off-the-clock.

But, are the concerns about off-the-clock work really justified?

Let's try and address some of the most common ones.

Is it illegal to work off-the-clock?

Employers could face legal consequences for not paying their employees for off-the-clock work.

According to FLSA, "employers failing to identify, record, or compensate "off-the-clock" hours spent by employees performing compensable, job-related activities" are at the risk of litigation.

So, in case you have no other option but to work off-the-clock, be sure to inform both your manager and your employer and track these additional hours to avoid exposing your employer to wage and hour liability.

You can use a time tracker such as Clockify for this purpose to ensure that you get paid and your employer doesn't violate the FLSA regulations.

Can you get fired for working off-the-clock?

Although getting fired for off-the-clock work is possible, to find a clear-cut answer to this question, you need to be familiar with your company's policy.

Certain companies have a separate clause in their employment contract regarding the authorization of overtime work.

The clause might stipulate that if an employee doesn't ask for authorization and works off-the-clock without reporting these hours, an employer can fire this worker.

But, since the FLSA determines that non-exempt employees must be compensated for all hours worked, even if an employer announced that overtime isn't allowed, they'd still need to pay an employee who worked off-the-clock.

Still, to avoid getting in trouble for working off-the-clock, pay attention to whether the overtime requirement is included in your contract.

Can your boss monitor what you do off-the-clock?

Employers are not allowed to probe into their workers' lives outside working hours.

Some state constitutions even regulate this matter by enacting a right to privacy.

This regulation means that employers are not allowed to look into their employees' off-duty activities unless an employee gets in trouble for doing something illegal that directly affects their employer.

Still, although your employer does not have the right to investigate or access facts related to personal aspects of your private life, if you use your work computer for private purposes, you still compromise your privacy.

If you log into your private accounts using your work computer, you cannot expect to retain your privacy since employers are legally allowed to monitor all work devices.

Are there more disadvantages to working off-the-clock?

Apart from the legal consequences that go with working off-the-clock, there are a handful of additional downsides to this type of work activity.

Let's take a look at some of the most common ones.

Disadvantage #1: Working off-the-clock increases your chances of burnout

Let's say you have a lot on your plate and working off-the-clock is your only option to manage your workload.

Although it might seem like a good idea to work more hours to keep up with your workload, if you hold onto this habit, you increase your risk of burnout.

To prevent this, try discussing your heavy workload with your manager so that together you can find a more efficient way to get the job done without working off-the-clock.

Disadvantage #2: Working off-the-clock fuels tension in teams

If you're secretly working off-the-clock to manage your workload while your team struggles with their tasks during their regular hours, you risk increasing the tension between you and your team members.

If nobody knows you're working off-the-clock, the rest of the team might look like slackers compared to you.

The only way to avoid this is to stop working off-the-clock.

Yet again, if the inability to cope with your tasks leads you to work late, talk to your manager and try to find the most suitable solution — the one that excludes off-the-clock work.

Disadvantage #3: Working off-the-clock increases your stress levels

Although it cannot be denied that having gadgets within reach improves our work efficiency, being constantly alert could be quite damaging in the long run.

Namely, a study including a sample of over 500 elementary school teachers has shown that having to respond to emails or voicemail messages immediately, even after hours, increased their weekly stress levels and had a negative impact on their overall mental wellbeing.

To avoid the damaging consequences of being constantly involved in work, try discussing this issue with your team members and/or manager.

This conversation might deliver an optimal solution to handling off-the-clock communication that doesn't negatively affect anyone's wellbeing.

Are there cases when off-the-clock work is allowed?

As a matter of fact, there are cases when off-the-clock work is allowed, but they usually involve insignificant and minor tasks.

Let's say you got a promotion, so you need to shift to another work area. Since the new position requires you to use some new tools, you'll spend a couple of minutes moving these tools to your new work area.

The time period you spend completing such a minor work-related activity is called de minimis time.

Although employees do invest certain time into a task, de minimis usually involves "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.

How can employers prevent working off-the-clock?

Sometimes, spotting off-the-clock work can be tricky, especially with flexible work schedules and remote working.

But, some steps can be taken to ensure working after hours doesn't become standard practice.

Tip #1: Introduce time tracking

Perhaps your employees tend to refresh their inboxes even after they leave the office, or they work during a lunch break.

Whichever the case, if you are unaware of your team's off-the-clock work habits, not only are you silently promoting unwanted behavior, but you're also risking a potential lawsuit.

Since you can't address what you don't know, encouraging your team to track their time can give you an overview of everyone's work hours.

Apart from that, if you're using a time tracking app to stay on top of your team's work habits, you'll be able to spot any potential time eaters that lead your team to work overtime by taking a quick glimpse at your team's workday.

The data you compile after your team gets into the habit of tracking their time could help you reorganize the workflow to prevent after-hours work and recognize and address this issue as soon as it happens.

Still, keep in mind that you'll have to communicate to your team members that they need to track every work-related activity to prevent any off-the-clock activity from passing unnoticed.

Tip #2: Have clear policies

Sometimes, employees engage in off-the-clock activities because they aren't aware that such activities are not permitted.

So, having a transparent off-the-clock policy that every employee is familiar with is a stepping stone to eliminating off-the-clock work activities.

You can start by defining what types of work-related tasks are strictly prohibited outside of work hours.

For example, you might want to prevent your employees from sending emails during their after-hours.

If that's the case, make sure to clearly state that such work activities are not allowed outside of work time and elaborate on the consequences that go with engaging in off-the-clock work.

Also, make sure to carefully instruct managers too, to prevent them from assigning new work tasks to their team members after they clock out.

Tip #3: Improve team time management

Let's say you have introduced an off-the-clock work policy and encouraged your team to track time.

But, you still notice everyone struggling to complete their tasks within regular working hours. When this happens, the main culprit could be improper time management.

The good news is that this, too, can be fixed.

But, the cure might depend on the root cause that's behind this issue.

Perhaps your team struggles with keeping track of deadlines, and they repeatedly have to work late to make up for the lost time.

To prevent deadlines from sneaking up on your team, you can make them more visible by putting them up on a digital board or by creating to-dos with clear deadlines in a project management app.

If your team is well aware of their deadlines, but everyone's struggling to finish their tasks on time, your best shot is to schedule an open conversation with your employees.

A discussion with your team could potentially reveal all the stumbling blocks that prevent the employees from being in control of their time and finishing their tasks within an expected time frame.

As soon as you discover where your team stands, it will be much easier to work through a solution and lead your team to brush up on their time management skills.

How do countries worldwide 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.

Preventing off-the-clock work in 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.

However, years later the bill still hasn't been adopted, so it remains to be seen whether the US employees will acquire their right to disconnect in the near future.

Preventing off-the-clock work in France

In 2017, the French government adopted the right to disconnect to ensure that all work-related communication happens only during official working hours.

This legal right applies to French companies that employ more than 50 workers.

Preventing off-the-clock work in Germany

Even though there are no legal regulations on off-the-clock communication in Germany, some German companies have decided to regulate this matter internally.

For example, Volkswagen turns off email servers from 6.15 p.m. to 7 a.m.

Preventing off-the-clock work in South Korea

Since 2018, the South Korean government has started the shutdown initiative for government employees. So, every Friday from 8 pm, all working computers get shut down, to prevent working overtime.

However, not all employees have this privilege — 67.1% of government workers are exempt from this rule.

Preventing off-the-clock work in Portugal

Even though the government of Portugal rejected introducing the right to disconnect, they have decided to prevent employers from contacting employees outside of their regular working hours.

Since January 2022, sending a quick email to an employee after they have clocked out has become strictly prohibited in Portugal.

Violating this law can result in a penalty for the employer.

Preventing off-the-clock work in Slovakia

In 2021, Slovakia introduced the right to disconnect to ensure their remote employees achieve a better work-life balance.

So, after they clock out, Slovakian remote employees have every right not to be available and not to use any work equipment.

If their employer requires them to stay working late or wants to get in touch with them during their time off, employees have the right to refuse to complete any work-related tasks.

Preventing off-the-clock work in Italy

Ever since 2017, Italian “smart workers” (workers with flexible arrangements) have been granted the right not to engage in any work-related communication outside their official working hours.

Preventing off-the-clock work in the 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 emails, texts, or calls."

If employees choose not to answer a work-related call or reply to a work email after work hours, they won't be disciplined.

Final thoughts: Working-off-the clock is rarely a good call

Working-off-the clock is rarely a smart decision, and it can get both the employee and the employer in trouble.

To sum up everything we've discussed in this guide (and dispel any doubts you may still have), let's quickly go over everything employees, managers and employers need to know about working-off-the clock:

• Employers: Don't forget to set up an off-the-clock work policy. Try to organize training sessions for all employees so that everyone's on the same page regarding this policy.
• Managers: Always make sure that your employees are compensated for working off-the-clock. Also, don't forget to let your boss know about your additional working hours.
• Employees: Follow the off-the-clock policy, track your off-the-clock hours, and notify your manager and employer about them.

In case you still have any concerns — it would be best to consult your legal department.