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Library - Employment Law
Wage Claims, Overtime & Other Employee Compensation
SHOULD EMPLOYEES BE PAID FOR WORK DONE “OFF THE
CLOCK”?
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Q:
I work as a
driver/courier for a service-oriented company. I am
often asked by my supervisor to pick up packages an hour
or two before my regular clock in time. However, my
supervisor told me to always clock-in at my regular
clock in time. So even though I work an extra one or two
hours every day, I am only paid 8 hours and not 9 or 10
hours. Should I be paid for the work that I do outside
of my regular scheduled hours? |
A:
Yes, you should be paid for the extra hours you worked even though
such work was done before your scheduled hours. Such extra hours are
termed “off the clock” hours because they occur outside an
employee’s regular work hours or shift. In this instance, you are
additionally entitled to the overtime rate of 1½ times your regular
rate for any work in excess of 8 hours per day.
Off-the-clock hours are incurred, for example, when
employees work at 8 AM even though scheduled to start at 9 AM, or
they finish work at 6 PM even though scheduled to end at 5:30 PM.
Off-the-clock hours are still considered “hours worked.”
Under California laws, “hours worked” is defined as the
time during which an employee is subject to the control of an
employer. It includes all the time the employee is suffered or
permitted to work, whether or not required to do so. If the employer
tells the employee to come in and perform work (even if outside the
employee’s scheduled work hours or shift), or if the employee tells
the employee to finish work regardless of the employee’s clock out
time, then the employee is, therefore, required to work. The
employee should be paid for this time. If off-the-clock hours exceed
8 hours per day or 40 hours per week, the employee should be paid
overtime.
The California Labor Code requires that non-exempt
employees (i.e. employees who do not fall under the executive,
administrative, or professional exemptions in the Wage Orders) must
be paid overtime compensation if they worked any hour or a fraction
of an hour in excess of 8 hours per day or more than 40 hours per
work week. The employee must be paid at the premium rate of 1 ½
times the employee’s regular rate if the employee worked more than 8
but less than 12 hours in a work day. If the employee worked more
than 12 hours in a work day or in excess of 8 hours on the seventh
day in a work week, the employee is entitled to double the
employee’s regular rate.
Perhaps one of the greatest hurdles that off-the-clock
employees face when it comes to collecting for unpaid wages is how
to prove that they performed off-the-clock work. By its very nature,
off-the-clock work cannot be tracked or demonstrated by the usual
time clock methods. Even though employers are required by law to
keep accurate time records, employees cannot simply rely on an
employer’s time-keeping records to substantiate claims for
off-the-clock work. Employees may look to other means. The simplest,
of course, is for employees to keep a contemporaneous personal diary
of their hours worked.
However, absent a personal timesheet, there might still
be other means that an employee can prove off-the-clock hours. Such
an employee would be better served to consult with an experienced
employment attorney to discuss possible options.
©
Law Offices C. Joe Sayas, Jr.
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