What Counts as Hours Worked:  Are You Forced to Work “Off the Clock”?

Employees must be paid for all work time.

You punch in, you punch out, and you receive a paycheck.  And you trust that your employer calculated your pay correctly.  If you are an hourly employee (or even a non-exempt, salaried employee), you should look closely at your paycheck and make sure you are getting paid for all hours worked.  There are many ways an employer (knowingly or not) can prevent an employee from getting paid for all hours worked.

“Work time” is potentially any time spent performing job-related activities, even when “off the clock” if the employer knows or could easily have found out an employee was working while not clocked in for work.  Time spent performing required tasks before and after an employee’s paid shift also can be work time.  An employee may not “volunteer” to work, or be forced to clock out, and still work without being paid.  Short breaks, if allowed, generally count as work time, but meal periods do not.  Required training time also should be counted as work time.  Some on-call time, waiting time, and travel time will count as work time.

If an employee’s work time adds up to more than 40 hours in a 7-day work week, then the Fair Labor Standards Act (FLSA) requires the employer to pay the employee 1.5 times his or her normal hourly rate for all work hours that exceed 40 hours.  Please see our wage and overtime tracking tips page to help you track your work time.  If you feel you have not been paid for all hours worked, or for overtime, contact us now.

“Off the Clock” or Volunteer Work

One of the most common ways in which employees are wrongly denied overtime pay is by being forced to do part of their jobs “off the clock.”  Whether it is prep work at the beginning of a shift, cleaning and closing tasks at the end of a shift, or doing work at night or on the weekends, employees have a legal right to be paid for all of the time they spend on the job performing tasks that are necessary to the job.  Off the clock work not only prevents employees from being accurately paid for their efforts, it also can deny employees overtime pay by requiring them to work more than a 40-hour work week without paying the overtime rate required by law.

Most employers will have a policy, written or not, that an employee may work for only 40 hours in a work week.  Some employers may try to deny overtime because it is not allowed or requires prior approval.  Other employers may ask an employee to “volunteer” their time and work for no pay.  In all of these cases, if the employer knew or could easily have discovered that the employee was working, the time counts as work time and the employee must be paid for it, even if it causes the employee to go over 40 hours in a work week.

The off the clock protection also extends to non-exempt, salaried employees.  The law also requires these wage earners be paid for any “take home” or weekend work.

Pre-Shift Work and Post-Shift Work

Sometimes, there are required job duties or meetings that occur before clocking in and after clocking out.  If these tasks are necessary for performing the job, they count as work time.  For example, often a call center worker’s work time is tracked only when the worker is logged into the phone system and able to accept calls.  Before logging in to the phone system, however, she is required to read work emails or memos, or spend several minutes opening and signing into computer programs necessary for the performance of her job.  Similarly, at the end of her shift, she logs out of the phone system but then must spend several minutes signing out of these programs or completing other end-of-the-day tasks.  The amount of time these pre- and post-shift tasks take likely still counts as work time.

Meals and Breaks

In Texas, employers are not required to allow breaks or meal periods, but if they do, the employers must follow the requirements of the FLSA.  If a break is allowed to eat a meal (typically 30 minutes to an hour), then the meal break generally does not count as “work time.”  An employee on a meal break, however, must be relieved from performing any work during this time.  If an employee is required to work while eating, then the time is still compensable work time.

A break or rest period of a short duration, other than meal times, are usually 20 minutes or less.  This time is generally counted as work time.  Employees should check the employer’s written policies about short breaks. An employee may be disciplined for taking longer breaks than allowed, which can include a deduction for the excess time above the allowed amount of time for the break or even termination.

Training Time

Employer-mandated training time, especially if during an employee’s normal shift and related to enhancing the employee’s work, will generally count as work time.  Suggested training, for which the employee will not suffer any negative results if the employee does not attend – particularly if the training is outside the employee’s normal shift – is generally not work time.

On-Call Time and Waiting Time

Under some circumstances, time that an employee is required to be “on call,” meaning ready and available to start working on short notice, counts as work time.  Whether on-call time counts as work time must be assessed on a case-by-case basis, but generally if an employee is required to be “on call” at the employer’s location or otherwise is unable to effectively use that time for his or her own purposes, then the employee should be paid for that time.

Similarly, if part of an employee’s job is to wait for a task to be assigned while at his or her workstation, like a firefighter at a fire station waiting for an alarm, then he or she has been “engaged to wait” and should be paid for that time.  On the other hand, if the employee is simply waiting to be hired or “waiting to be engaged”, then that time is not compensable work time.

Travel Time

Whether travel time is work time depends on several factors.  If the employee is not performing any work on the trip, or the trip is just the employee’s normal commute to and from the workplace, then the travel time is generally not work time.  Travel time may be work time, however, according to the following guidelines:

  • Travel that is all in a Day’s Work:  Traveling from one worksite to another throughout the day as part of the employee’s regular duties is work time, except for the trip from home at the beginning of the day and the trip to the employee’s home at the end of the day.
  • Special One Day Assignment in Another City:  Travel that does not require an overnight stay but does include travel to another city from home and then back home the same day is work time.  The employer may deduct or not count the time the employee would normally spend on his or her daily commute to and from the regular worksite.
  • Overnight Travel Away from Home Community:  Traveling for work during an employee’s normal working hours, even if not on a normal work day, is compensable work time, except for bona fide meal periods during which business was not discussed.  Time traveling for work that falls outside of the employee’s normal working hours, if a passenger in a vehicle, will not count as work time unless the employee must work during that time or is required to help or assist the driver.  Time spent driving a vehicle for the work trip generally does count, except for bona fide meal and sleeping periods.

If you have questions about the hours for which you have not been paid overtime, contact the lawyers  at Spencer Scott pllc for a free consultation.