Managing your employee’s time is critical to prevent off the clock work. For employees who are exempt from overtime, working off the clock is not an issue. For those that are non-exempt, it is illegal.
What Are Some Examples of Working Off the Clock?
There are a variety of issues of why employees may work off the clock. Some employees may work off the clock because of an increased workload or staffing issues. Even some managers may ask employees to work off the clock for short periods of time to help with the budget and prevent overtime.
Here are some examples of working off the clock that your employees may be doing:
- Preparing documents from home to get ready for the next day
- Responding to work emails from their work or personal phone
- Cleaning and putting up tools when the work is completed, and the employee has already clocked out
- A worker that doesn’t complete the project before leaving and takes it home
- A retail worker who clocks out and then has to stay late to help a customer
According to the DOL, some industries like construction have other issues in which they do not pay their employees. Because of this, they may have to pay backpay.
Some of the issues include:
- Failure to record all hours actually worked to include working before or after the shift
- Shorting of hours by using terms such as down time or rain delay
- Failure to compensate for meal breaks where the employee is not completely relieved of all duties to enjoy uninterrupted time for the meal
- “Banking” of overtime hours or payment of overtime in the form of comp time
- Not combining the hours worked for overtime by an employee in more than one job classification for the same employer within the same workweek
- Failure to segregate and pay overtime hours on a workweek basis when employees are paid on a bi-weekly or semi-monthly basis
- Failure to pay for travel from shop to work-site and back
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What Are the Overtime Exemption Requirements?
The definition of overtime is working time in excess of a standard day or week. The Fair Labor Standards Act (FLSA) requires employers to pay one and one-half times the regular rate for all hours worked over 40 hours in a workweek. They do not require premium pay for daily overtime or when an employee works on a weekend or holiday.
Unless an employee is exempt, overtime is calculated at a rate not less than time and one-half their regular rate of pay.
You are required to pay overtime to anyone who makes under $684 a week regardless of job title. Just because you make them a salaried employee, it does not mean they are automatically exempt. There are five categories in which an employee could be exempt. They are executive, administrative, professional, computer, or outside sales. Each of these has a duties test so you may determine whether they should be paid overtime.
If you are unsure of an employee’s exempt status after reviewing the duties tests, you may want to consult with an employment law attorney.
Back Pay for Working Off the Clock
There are several instances where companies had to pay back pay for employees working off the clock. If anyone files a complaint with the Department of Labor (DOL), and they find you haven’t paid your employees overtime, you can be held responsible.
When an employer doesn’t keep accurate records, the employee can show the number of hours worked based upon their own testimony. If the employee has good records and you don’t, they may have a good case.
How to Prevent Your Employees from Working Off the Clock
Write clear and precise policies.
Implement policies that are clear and ensure your employees and managers are complying. Your employees need to know it is important to you that they are paid for all time worked. Your policies should show that off-the-clock work is not allowed, and any discrepancies should be reported immediately.
Train Your Managers.
You should also train your managers and show them specific examples of how other companies have had to pay back pay. In some instances, managers have even adjusted an employee’s clock-in and out times from the computer to ensure they didn’t have to pay overtime. Training your managers on overtime is essential. They need to know how it can hurt your business if they do not do their job well.
Track your employee’s time.
Consider investing in a time tracking app for your small business like ezClocker. It keeps track of your employees’ hours, their location, and overtime. ezClocker also has good reports so you can see when overtime is occurring. Furthermore, it offers an online scheduling system which makes it easy to create schedules. Your employees can view where and when they are working from their phone or computer.
Insignificant Periods of Time
According to the FLSA, insignificant periods of time beyond the scheduled working hours are where something can’t be precisely recorded and may be disregarded. The courts have said that these periods of time are de minimis (insignificant). This rule applies when there are occurrences that are a few seconds or a few minutes. For example, when an employee clocks in, transfers tools to their job, and then goes home sick without doing any work or clocking out. The time spent transporting their tools would be considered insignificant.
These cases should be infrequent and minimal.
Also, in some industries, some round up or down to the starting and stopping time to the nearest 5 minutes. These arrangements usually average out. They are acceptable unless over a period of time they fail to count hours actually worked.
Know Your State Laws for Overtime
It is important to know your state laws and local laws when you start hiring employees.
Some states such as California have stricter guidelines for overtime. Some states have daily laws for working over eight hours a day, and some have laws for working over ten or twelve hours a day. It is important to know your overtime laws.You can also use software like ezClocker where it will automatically calculate overtime based on the hours you specified.
Final Thoughts on Employees Working Off the Clock
If you find some employees are working without being paid because they always feel behind, you should meet with them and discuss other options. Sometimes employees are hard workers and want to do a lot for the company. That is good as long as they aren’t doing anything illegal. You should determine whether you need to decrease their workload, hire more people, or help them with their time management. Consider taking work email off their personal or work phones.
According to the DOL, a two-year statute of limitations applies to the recovery of back pay. In the case of willful violations, a three-year statute of limitations applies.
Ensure your managers are well trained and they understand that employees must be paid for all the work they do. They should understand how their decisions can affect the company. Many times, employees may say that they don’t mind working off the clock to help out, but then they become discouraged.
By implementing good policies, training your managers, and tracking your employee’s time, you can ensure you follow all overtime laws.
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