Non-exempt employees must be paid for all hours worked for the benefit of the employer. Employers are liable to employees for unpaid wages. When non-exempt employees work over 40 hours a week, they must be paid overtime. This applies to work performed away from the job site, including at work performed at home. To be compensable, an employer must be aware that off the clock work is being performed by the employee. Examples of off the clock work include:
- Starting work before clocking in;
- Clocking out, but continuing to work;
- Working during meal periods;
- Off-the-clock overtime;
- Working at home; and/or
- Checking/responding to email.
Off the clock work is often unpaid with the increase of automatic time keeping systems, remote work practices and the use of smart phones and tablets to perform work communications. Time spent outside of working hours on portable electronic devices is often compensable time. Based on the Fair Labor Standards Act, PDA and smartphone use for work purposes, such as checking emails, is likely compensable.
In recent years, employees have successfully brought class action lawsuits where employers failed to compensate them class action case wherein police officers alleged the police department issued electronic devices and required them to respond to work-related emails, text messages, and voicemails around the clock while off duty. More traditionally, employees have used class actions as a vehicle to compensate them for unpaid time spent working before and after their scheduled shifts – often referred to as “donning and doffing.” Our class action employment lawyers are seasoned litigators on traditional off the clock claims wage and hour claims.