Off-The-Clock Work

Generally speaking, an employee must be paid for all hours worked. The employer has the burden of tracking an employee’s working time. This may be complicated by the COVID-19 pandemic for those teleworking, but the employer still must satisfy its responsibility, for example by using time tracking software. An employer may legally avoid paying overtime by enforcing policies prohibiting employees from working more than 40 hours a week and disciplining them if they violate these policies. However, an employer cannot passively accept an employee’s labor without paying for it.

What Is Working Time?

Working time is time spent by the employee for the employer’s benefit – in legalese, the time “suffered or permitted to work” by the employee. It does not matter whether the employer specifically requested that a particular work task be performed or not if that work task benefits the employer. The employer must pay for all hours of work that the employer knows or reasonably should know that the employee was working. Thus, an employer cannot “dig its head in the sand” and pretend not to know that employees may be performing work beyond normal working hours. For example, if an employee regularly sends work emails from home in the evening to a supervisor, then the employer likely has reason to know of the employee’s work and must pay for this working time. Again, if the employer does not wish to pay overtime to employees, then it should create and enforce policies against overtime being worked in the first place.

Is Travel Time Considered Working Time?

Generally, no – an employee’s commute is not compensable. However, there are some contexts in which travel time must be compensated. For example, some construction employers require their workers to show up at the employer’s yard to load tools into a work truck before traveling to the construction site. In this instance, the employer would be required to pay for the employee’s time spent working, beginning from when they are required to arrive at the employer’s yard (including the travel time to the day’s construction site).

If you suspect that you have not been paid for all of your working time, you may contact our law firm, Edelson Lechtzin LLP, at 844-696-7492 for a free consultation.