Working off the Clock
Working off the Clock is Illegal
Working off the clock first requires an understanding of what it means to be “working”. The Fair Labor Standards Act (FLSA), and California’s Wage Orders, have defined employ as “to suffer or permit to work.” The long-accepted definition of working is “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursed necessarily or primarily for the benefit of the employer and his business.” So, basically, it’s the employee’s physical or mental exertion, controlled by the employer, benefitting the employer. The Supreme Court of the United States has taken this to mean that time spent walking from time clocks to workstations was work time.
California is a little different in regard to Working off the Clock and ‘work’ in specific. It has two definitions of compensable work time. California healthcare industry workers use the FLSA definition, the physical or mental exertion, controlled by the employer, for the employer. But most California employees are covered by California’s wage orders. California’s wage orders define work time as time which is “subject to the control of an employer and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” California courts have taken this to mean that time spent walking from time clocks to workstations was worktime. But, worktime could also be time spent putting on protective gear, or taking off the protective gear (donning and doffing), waiting for company shuttles to take employees to parking lots, and even waiting to have bags checked as part of mandatory security screenings.
California provides three very specific exclusions from their definition of compensable work time:
Passive, on premises activities for residential employees;
Recess time; and
Travel time in employer-sponsored van pools.
Suffered or Permitted
Work is “suffered or permitted” when the employer knows, or should know, that the employee is doing the work. So, compensable work time is not only time that is authorized by the employer, but it is work time to which the employer allows or acquiesces. So, the employer who does not want to compensate employees for certain work activities must direct employees not to perform those certain work activities. The employer must also ensure that the employees are not performing those certain work activities. Work which is “suffered or permitted”, includes work that may not be authorized, including work performed by employees at home, such as time spent checking and responding to emails or texts before or after work.
Any work whatsoever, which an employer knows about, or has reason to believe is being performed away from the work site, must be compensated. Compensable work can occur anywhere. It can occur at the employer’s place of business, and away. For example, security guards who maintain their company vehicle, or weapon at home, must be compensated for their work. Police officers in canine units, who must care for their dogs, must be compensated for the time spent caring for their dogs. Whether at work, or at home, the work is compensable.
The De Minimis Rule
The de minimis rule has been confusing people since 1946. That is when the Supreme Court of the United States said that employers did not have to pay their employees for a few seconds or minutes of work under the Fair Labor Standards Act. But, in 2018, the California Supreme Court disagreed, and gave the de minimis rule the thumbs down. The California Supreme Court concluded that the de minimis rule, under the Fair Labor Standards Act, did not apply under California’s Wage Orders. So, under California law, any time an employee works for an employer, the employee should be paid for that time.
For example, Henry’s hours are 8 AM to 5 PM. That gives him plenty of time to dig at the excavation site. But, before digging at 8:00 AM, Henry must lay out all his tools. Henry usually gets there about 7:45 AM because he knows Marcus likes to see Henry digging at 8:00. Henry works from 7:45 to 8:00. But he writes on his timecard that he started at 8:00 because Marcus said that is what time his shift starts at, and that is what time he should put down. Henry should be paid for another 15 minutes of work. Do not look now, but that 15 minutes of work should probably be paid at Henry’s overtime rate since he probably worked from 7:45- 12:00 PM and then from 1:00 PM to 5:00 PM. You see, Henry worked more than 8 hours in a day. So, that extra 15 minutes should be paid as overtime. Sure, he is an archaeologist, and his job is to dig. But he had to spend time preparing to dig…even if Marcus does not want to pay for it.
If you think you are being asked to work off the clock illegally, you should contact an experienced California employee rights attorney.