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Can your employer demand that you work before clocking in?

On Behalf of | Dec 16, 2021 | Class Actions, Wage & Hour Litigation

Requiring non-exempt employees to work off-the-clock is surprisingly common even though it’s usually illegal.

Here are a few examples of employees who sued their employers for being forced to work off-the-clock:

  • Corrections officers alleged that they were required to perform work duties before and after their shifts, including changing into their uniforms and attending pre-shift and post-shift meetings. See Woodburn v. City of Henderson, 2021 WL 5605177 (D. Nev. Nov. 29, 2021) (conditional certification of collective action granted).
  • Restaurant workers alleged that they were required to do cleaning a prep work before their shifts, but they were prohibited from clocking in until they began serving customers. See Florece v. Jose Pepper’s Restaurants, LLC, 2021 WL 5042715 (D. Kan. Oct. 29, 2021) (settled for $1.75 million).
  • Certified Nursing Assistants (CNAs). See Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298 (D. Md. 2007) (denying the employer’s summary judgment motion).
  • A live-in superintendent at a mental health services facility alleged that he regularly worked outside of his scheduled hours, but was not compensated for that work.
    See Perez v. Postgraduate Ctr. for Mental Health, 2021 WL 3667054 (E.D.N.Y. Aug. 18, 2021) (summary judgment granted in part and denied in part).
  • Call-center employees. See Brown v. PSCU, Inc., 2020 WL 7122075 (E.D. Mich. Dec. 4, 2020).
  • New York City employees alleged they were required to work before the official start time of their shifts. See Foster v. City of New York, 2020 WL 8173266 (S.D.N.Y. Oct. 30, 2020).
  • Telecom technicians and technician escorts. See Beaton v. Verizon New York, Inc., 2020 WL 5819902 (E.D.N.Y. Sept. 30, 2020) (conditional certification granted).
  • Security guards alleged they were required to arrive prior to their shifts to pick up equipment. See Shoults v. G4S Secure Sols. (USA) Inc., 2020 WL 8674000 (D. Ariz. July 31, 2020).

Each of these cases has one thing in common — an employer that attempted to keep payroll costs down by demanding their employees work off-the-clock. However, allowing employees to work off-the-clock may violate workers’ rights under both state and federal laws.

When does off-the-clock or uncompensated work violate someone’s right to fair wages?

When it is frequent or a significant amount of time

Under the FLSA and state wage laws, workers who are paid on an hourly basis have a right to compensation for all of the time they work. Although there may be limited situations where an employee might need to perform a quick task before or after their shift, these scenarios should be infrequent and result in de minimis time lost by the employee.

If you have to commit a significant amount of time or if the off-the-clock work is part of your regular job responsibilities, then your employer may have violated your rights under state and federal wage laws, including the Fair Labor Labor Standards Act (FLSA), the California Labor Code, and the New York Wage Theft Prevention Act, just to name a few.

Employers cannot demand that you consistently perform work without compensation or deprive you of pay for small amounts of time after or before each shift. After all, 10 or 15 minutes every day can quickly add up to entire weeks’ worth of compensation by the end of the year.

Having a written policy prohibiting off-the-clock work does not immunize an employer from being sued. Rather, a corporation that has an unwritten practice of allowing offtheclock work, in violation of its written prohibition, will support a claim for wage and hour infractions. See LaFleur v. Dollar Tree Stores, Inc., 30 F. Supp. 3d 463, 471 (E.D. Va. 2014).

How do you seek reimbursement for uncompensated work?

To successfully bring a wage claim against your employer, you need to prove not only that you have done work without appropriate compensation but also that your employer knew or should have known that you were working off the clock. See Koike v. Starbucks Corp., 2008 WL 7796650, at *2 (N.D. Cal. June 20, 2008), aff’d, 378 F. App’x 659 (9th Cir. 2010) (to prevail on an offthe-clock claim, an employee must demonstrate that the employer had actual or constructive knowledge of his alleged offtheclock work).

Documents showing that you worked off-the-clock can certainly help to prove your case. But testimony from employees about the illegal policies and practices can be just as strong. See Reich v. S. New England Telecomm. Corp., 121 F.3d 58, 68 (2d Cir.1997) (Testimony of a representative sampling of plaintiffs in a class action is often used in FLSA lawsuits).

Courts also consider circumstantial evidence that an employer has an unofficial policy requiring off-the-clock work. Things like payroll budgets, aggressive management of overtime, and scheduling processes that would result in understaffing can all be indicators of an illegal off-the-clock policy. See In re Bank of Am. Wage & Hour Emp. Litig., 286 F.R.D. 572, 586 (D. Kan. 2012) (crediting circumstantial evidence that the bank reprimanded managers who did not adhere to their labor budgets or who regularly permitted employees to work overtime hours). The more workers who experience the same demands and the more documentation you have of the practice, such as its inclusion in text messages or memos to staff, the stronger your case will likely be if you have to go to court.

Recognizing that your employer has violated your wage rights could motivate you to file a wage claim and get the pay you deserve.

Will I have to pay attorney’s fees?

No. Edelson Lechtzin LLP handles wage and hour claims on a contingent fee basis. This means that the lawyers don’t get paid fees unless they obtain a recovery for you.

If you would like to discuss a potential off-the-clock case, please contact us at 844-696-7492 (toll-free) or email us at [email protected]. You can also fill out the form on this page.