Working Without Pay: Off-The-Clock Overtime Hours?

working on lunchEvery week, tens of thousands of Americans work without pay for some or all of their work.

Before you think this only affects certain industries or just small businesses, think again.

Companies ranging WalMart to Walgreens and CVS to a number of local businesses in your state have found themselves in hot water because their employees claim they did not pay them for all of their overtime hours worked.

One of the most common reasons that employees don’t get paid for all of their overtime hours worked involves “off-the-clock” work. Off-the-clock work is work performed when the employer is not recording or crediting such time.

Examples of problems in this area include the following:

Pre-Shift

Some employees are responsible for showing up at meetings or for training before their shift starts. Their employers may advise that they cannot punch in for this time spent attending such meetings or training.

Other reasons employees do not work on the clock before a schedule shift can include the most obvious – an employer who tells them that they are not allowed to punch in before a designated time, even though the employees are performing work before their “official” start time. For example, an employee may be told to report to work at 7:45 am, but can not punch in until 8:00 am.

Lunch Break Deductions

Typically, employees are entitled to be paid for breaks less than 20 minutes. For breaks over 20 minutes –such as a lunch break of 30 minutes or more – employees are entitled to be paid if they perform work for the employer’s benefit during the lunch break.

For example, an employee who sits at her desk, answers calls and emails, and performs other work during her lunch break, is entitled to be paid for that time. Some employers have policies that “automatically” deduct time from employee time cards for their breaks, including lunch breaks, regardless of whether employees are performing work during these meal breaks.

If your employer is deducting time for breaks from your hours worked and you are performing work for your employer during your breaks, then you may wish to explore seeking reimbursement for unpaid wages.

Post-Shift

Like pre-shift issues, some employees are simply told that they will not be paid after their “official” end time, while at the same time the employer still make responsible for accomplishing their daily responsibilities.

Meanwhile, employers condition employees to believe that that they may not be due overtime pay, when they legally are. Here are a few of the most common reasons why employees may be confused into believing that they are not entitled to overtime.

My Boss Did Not Approve Overtime

Some employees think that to be paid for overtime hours worked, an employer must give prior “approval” for the overtime. This is a legal myth, because what really matters is whether the employer benefited from the work and whether the employer should have known that the employee was working those hours. Unrealistic deadlines, statements such as “stay until you finish,” or time-stamped emails demonstrate that work was conducted.

I Didn’t Keep Any Time Records

Eligible employees are entitle to overtime, regardless of whether they punched in and out for work. For example, many salaried employees are not required to punch in and out because an employer thinks that they are exempt.

Nonetheless, even in the absence of the time records, employers still are responsible for keeping time records for their non-exempt employees. If an employer fails in its duty to maintain proper time records, the law allows employees to rely on their best estimation of their hours worked.

I “Chose” To Work The Overtime

An employer still can be liable for overtime pay if the company benefited from the work and/or had reason to know about the overtime work. Unrealistic deadlines and/or performance goals are techniques some employers use to influence workers to “choose” to work overtime. Ultimately, the employer still may be responsible for compensation of the overtime hours worked.

My Boss Gave Me Comp Time On Other Weeks

Employers in the private sector cannot use comp time in other weeks to “make up” for overtime worked in a different pay week. In terms of the law, each week has to be treated separately and an employer cannot “average” hours out over several weeks. Notably, government employees may receive comp time in lieu of overtime pay.

You Earned It,
Now Let's Go Get It.

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