Working ‘off the clock’ is a critical employment concept for both employees and employers to be thoroughly familiar with. Employers can be sued if they fail to pay an employee for work that should have been paid for under applicable wage and hour law as directed by the Fair Labor Standards Act (FLSA). This situation comes up frequently in the restaurant field with cooks who often work ‘off the clock.’
Understand Off the Clock Wage and Hour Violations
Let’s examine a possible scenario. A cook at a restaurant begins his shift at 3 p.m., which is when he officially clocks in. However, the restaurant knowingly made it mandatory for him to come at 2 p.m. Perhaps they want him to supervise staff and handle other prep duties. At the same time, the restaurant makes it a requirement that the cook work ‘off the clock’ for an additional 30 minutes to an hour after the shift, perhaps to help clean up. Compounding the situation further is the fact that this cook is required to work during unpaid lunch breaks and has to eat on the run. In this situation, the cook is likely entitled to assert ‘off the clock’ violations.
To better understand this hypothetical situation, it is important to know what the Fair Labor Standards Act means when it comes to the word “employ.” The FLSA directs minimum wage and overtime pay, among other rules, affecting employees in the private sector.
‘Employ’ as defined by the FLSA means to ‘suffer or permit to work.’ Bottom line: if an employer requires, encourages or allows employees to work outside of shift hours, that means workers are ’employed’ and the time spent is, in all likelihood, hours worked which are compensable. This is true even if the employer did not directly ask the employee to put in the extra time.
An employer is held to the standard that it should have known about the ‘off the clock’ work and that the employer benefitted from it. Any extra time put in by the employee is hours worked and employees should be paid for that time. An employer is under a duty to see that work is not performed if the employer truly does not want the work performed. An employer cannot be passive and reap the benefits of this work without considering those hours worked. Just having a posted rule is not enough. The employer must actively enforce its rules and should manage the situation directly.
You might be surprised at how widespread this practice is by employers and the substantial amounts of money that are not being paid to employees for ‘off the clock’ violations. Why do employers do it? Many businesses are struggling these days and employers may feel they have some leverage since they know most workers do not want to do anything to jeopardize their job. That’s not a justification.
What Off the Clock Workers Should Do
It is very important for a cook or other similarly situated employee to keep an ironclad diary of these kinds of work events and to document the fact that the restaurant in question made the cook work this extra time. Without appropriate documentation, a restaurant might argue that the cook was motivated to come in early on his own volition because he or she wanted to advance in the cooking world, wanted to do some prep on his own time, maybe prepare some equipment, test new recipes, or sharpen some knives, etc. The digital revolution is also exacerbating this problem. Answering e-mails on behalf of the restaurant 30 minutes prior to work or preparing recipes at home on a tablet can be ‘off the clock’ work if the employer encourages it.
Don’t let ‘off the clock’ violations deprive you your rightful wages. Instead, take action by seeking help from someone who knows how to help and will guide you through your case. If you believe you have been a victim of ‘off the clock’ violations, John J. Zidziunas & Associates has a team of attorneys to confidentially review your case. For further information, call 973-509-8500, email firstname.lastname@example.org, or visit http://employmentdiscrimination.com/.
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