Yes, you should ordinarily be compensated for the hours worked on behalf of your employer even if the hours are considered “off-the-clock.” Off-the-clock work is work done for an employer that does not count towards an employee’s weekly hours for overtime purposes and which is not otherwise compensated. Examples of such work are many, but may include:
- Setting up at a restaurant before the start of a shift or cleaning up after a shift ends;
- Working through meal breaks;
- Being required to attend pre-shift meetings without pay;
- Being required to change in and out of uniforms at work without pay (commonly referred to as “donning and doffing”);
- Arriving to your work station and performing work prior to your start time;
- Finishing paperwork or other tasks after clocking out;
- Working remotely at the request of your employer;
- Travel time (i.e. between job sites)
- On-Call Time
- i.e. an employee who is required to remain “on call” on the employer’s premises or so close to the premises that the employee cannot use the time effectively for his or her own personal activities is considered working while and the time must be compensated.
- Being required to send, read, or respond to emails, voicemails, or texts on a cell phone or laptop.
A common violation also occurs when employees pay commissions incorrectly during weeks an employee works overtime. Many employees are misclassified
as independent contractors so their employers do not have to pay them overtime. Other employees are paid a salary and labeled “exempt” from the Fair Labor Standards Act (FLSA)
, even though the FLSA does not support their exempt status because they primarily perform nonexempt duties.
The determination of whether certain activities are off-the-clock work, thereby requiring compensation, are typically dependent on the particular facts of each case. There are three key questions courts will consider to help make that determination:
- (1) Is the activity integral or necessary to the performance of the job or required by the employer?
- (2) Does the employee have control over when and where these activities are done? and
- (3) Is the time spent de minimis?
With respect to the first two questions, the main issue is control, i.e., how much control does the employer have over an employee’s actions. The more control the employer has, the more likely it will be that such work is off-the-clock requiring the employee to be paid. When determining control, consider whether the activities are required or necessary to do the job, or whether the employer directs when or where the activities occur.
With travel time, for example, one’s commute in between work sites and from the work site to the employer’s location are compensable hours, so you should be paid for that time. To that end, when the employee must use a company car, is limited as to what the employee may do when using that car, and driving the company car is integral to the job, then even commute time may be deemed “hours worked” and compensable. However, driving from home to work, and back again is typically not considered as hours worked and thus is not compensable.
Similarly, for employees who are “on-call,” courts will look to, among other things, whether there are geographic limitations while on-call, the frequency of calls, and any required response time to a call. While no one factor is determinative, the ultimate question is how much freedom the employee has to engage in personal pursuits while on-call. The more control an employer exerts over the employee, the more likely the employee should be paid because they are hours worked. Each case is very fact intensive, which is why you should discuss your work situation and off-the-clock-work with an Ohio and FLSA off-the-clock-work attorney at Bryant Legal, LLC.
If you answer “yes” to any of the scenarios below, you are likely owed unpaid overtime wages and should contact us immediately to discuss in more detail. When evaluating any of the examples below, you should really focus on all of the hours you work (not just ones where you are clocked in or are paid for).
- Do you work before your shift without pay?
- start your work early, prepare for work, turn on your computer, logging into programs, emails, change into your uniform, gathering your equipment before traveling to a work site
- Do you work after your shift without pay?
- stay after regular business hours to finish your work, change out of your uniform, or clean your workstation
- Do you work from home without pay?
- check emails, answer or make phone calls
- Do you work through meal periods?
- eat at your desk, eat “on the go,” or eat while driving
- Are you not paid for short rest periods without pay?
- for example, shorter rest periods can range anywhere from 5 to 20-minute rest periods
- Are you not paid for travel time?
- while ordinary travel from home to work and back is not compensable, some work-related travel time is compensable. For example, if you must initially report to one location, such as the employer’s dispatching center, to receive assignments, and then must proceed to travel to other job locations it is compensable.
- If travel time spent includes any duties performed on behalf of the employer or otherwise is for the emplyoer’s benefit, it is compensable.
- Travel time to and from work in a special one-day assignment to another city is compensable.
- Are you not paid for training and meetings?
- during normal work hours, job related
In the event you believe you or your employees are not being paid for time spent working on behalf of your employer, call the Ohio and FLSA off-the-clock work attorneys at Bryant Legal, LLC
today for a free consultation to determine whether you are entitled to unpaid wages and overtime wages.