Working “Off-the-Clock”
The FLSA defines the term “employ” to include the words “suffer or permit to work.” Suffer or permit to work means that if an employer requires or allows employees to work they are employed and the time spent is probably hours worked.
Working “Off the Clock”/ Suffer or Permit to Work
Thus, time spent doing work not requested by the employer, but still allowed, is generally hours worked, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done. This time is commonly referred to as “working off the clock.”
For example: An employee may voluntarily continue to work at the end of the working hours. They may need to finish an assigned task, prepare reports, finish waiting on a customer, or take care of a patient in an emergency. An employee may take work home to complete in the evening or on weekends to meet a deadline. They may check or respond to emails, submit reports online, or attend video calls outside of normal working hours. An employee may report to work early to do preparatory or setup work, or work through all or part of an uncompensated meal period. All such activity is hours worked.
When an employee must correct mistakes in his or her work, the time must be treated as hours worked. The correction of errors, or “rework”, is hours worked, even when the employee voluntarily does the rework.
All time is hours worked during which an employee is required to be at work or is allowed to work for the employer. This includes time spent waiting, even if the employee has not been assigned specific tasks. A person hired to do nothing or to wait for something to do is still considered to be working.
Hours worked include all time during which an employee is required or allowed to perform any work for an employer, regardless of where the work is done, whether on the employer’s premises, at a designated work place, at home or at some other location. It is the duty of management to exercise control and see that work is not performed if the employer does not want it to be performed. An employer cannot sit back and accept the benefits of an employee’s work without considering the time spent to be hours worked. Merely making a rule against such work is not enough. The employer has the power to enforce the rule and must make every effort to do so. Employees generally may not volunteer to perform work without the employer having to count the time hours worked.
*The information provided above is for general informational purposes only and does not constitute legal advice. The Fair Labor Standards Act and related employment laws can be complex, and how they apply may vary based on the specific facts of your situation. If you believe your workplace rights have been violated, you should consult with an experienced employment attorney to obtain advice tailored to your individual circumstances.
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