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Can you recover back wages for off-the-clock work?

On Behalf of | May 25, 2023 | Wage And Hour Claims

As a general rule, “time worked is time paid…”[1] Requiring employees to perform work off-the-clock, without getting paid for it violates state and federal wage and hour laws. Some common instances of this practice occur when an employer requires someone to wait for work when none is available, work before or after their shift or even at home after their workday is complete.

Most employees work off-the-clock because they are under pressure from management to do so. For instance, they may be required to meet unrealistic sales or production goals and put in extra unpaid hours to achieve such goals, or they may simply need to put in time to prepare for work. Regardless, it is often illegal since employers must compensate employees for all hours worked, including overtime and off-the-clock.

You are entitled to compensation for off-the-clock work

Even simple tasks performed off-the-clock that only take a few minutes to complete can add up to weeks of unpaid labor overtime. It is only fair that you get compensated for the work you put in. Employers can get penalized under both state and federal wage and hour laws for permitting or encouraging off-the-clock work.[2] If your employer makes you work without tracking your hours or your organization’s policy is ineffective in preventing off-the-clock work, it’s important to seek legal guidance.

The steps to take to protect your interests

Speak to your employer about your concerns related to off-the-clock work and request compensation for all hours worked. It’s advisable to present the necessary evidence when raising the matter with your employer, such as a log of the time spent doing off-the-clock work. If you fail to resolve the issue internally, it will help to understand your rights and legal options. If all else fails, you may be able to file a wage and hour lawsuit against your employer to recover what you are owed.

How much can you recover?

The amount you can recover in a lawsuit will largely depend on the amount of time you worked off-the-clock work and your hourly rate of pay. You may recover the unpaid wages as well as your legal fees and liquidated damages,[3] which are intended to compensate you for the delay in receiving the wages that you earned for your work. Liquidated damages also serve as a deterrent to employers who might otherwise engage in violations of wage and hour laws.[4] Getting the necessary assistance to represent your interests and guide you through the entire process can help increase your chances of recovering what is rightfully yours.

[1] Falcon v. Starbucks Corp., 580 F. Supp. 2d 528, 531 (S.D. Tex. 2008).

[2] See, e.g., Arredondo v. Delano Farms Co., 301 F.R.D. 493, 523 (E.D. Cal. 2014) (quoting Morillion v. Royal Packing Co., 995 P.2d 139, 141 (Cal. 2000) (“Under California law, an employer must pay an employee for all hours worked. Hours worked are defined as the time during which an employee 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. Under this rule, an employer is deemed to have suffered or permitted [an employee] to work if it knew or should have known that its employees were working off-the-clock. Accordingly, the common question relating to whether Defendants’ policies or practices permitted uncompensated pre-shift work is congruent with the relevant legal standard for uncompensated work.”) (internal quotation marks omitted).

[3] See, e.g., Villanueva v. 179 Third Ave. Rest Inc., 500 F. Supp. 3d 219, 239 (S.D.N.Y. 2020), report and recommendation adopted sub nom. Villanueva v. 179 Third Ave. Rest. Inc., No. 16CV8782AJNRWL, 2021 WL 2139441 (S.D.N.Y. May 26, 2021) (“Both the FLSA and the NYLL provide for liquidated damages.”). Looking first at the FLSA, any employer who violates the minimum wage and overtime provisions of the FLSA is presumptively liable to the affected employees, in addition to back pay, for 100% of the unpaid wages as liquidated damages. Id. (referencing 29 U.S.C. § 216(b)) (“Any employer who violates the provisions … of this title [relating to minimum wages and overtime compensation] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation … and in an additional equal amount as liquidated damages.”). Liquidated damages are mandatory unless the employer demonstrates that they acted in good faith, in which case the decision to impose liquidated damages is discretionary. 29 U.S.C. § 260. The NYLL rules are similar. See, e.g., Garcia v. Giorgio’s Brick Oven & Wine Bar, No. 11 Civ. 4689, 2012 WL 3339220, at *4 (S.D.N.Y. Aug. 15, 2012) (“Effective April 9, 2011, Sections 198(1-a) and 663(1) of the NYLL were amended to provide for liquidated damages equal to one-hundred percent of the amounts underpaid.”).

[4] See, e.g., Velasquez v. U.S. 1 Farm Mkt., Inc., No. 3:13-CV-00634 CSH, 2013 WL 6195580, at *6 (D. Conn. Nov. 26, 2013) (“The Court also finds that Plaintiffs are likely to be granted liquidated damages under state law, and, in addition, that there is some possibility that Plaintiffs may also be granted liquidated damages under federal law, though for reasons explained infra the Court need not and does not reach a finding on that latter issue within this Ruling.”). Accordingly, C.G.S.A. § 31–72 provides that “[w]hen an employer fails to pay an employee wages … or fails to compensate an employee … such employee … may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court….” C.G. S.A. § 31–72.