When are duties considered “off-the-clock”?

As you know, employers must pay all employees for all time worked. Employers must make sure employees are accurately paid for ALL working time. Employees may not do any work prior to clocking in or after clocking out. You cannot allow employees to work off-the-clock.

There are a couple of different issues that typically come up when employees:

  • Change clothes or put safety gear on/off
  • Prepare the work area and/or clean up at the end of the day
  • Check and respond to work email or work-related calls or texts while not clocked in

Preparing for the day and finishing up

If you require employees to show up early to prepare for their day, they may need to clock in before “preparing” for their day. It really depends on what you mean by that. Do you mean they are getting their coffee? Putting jackets, bags, etc., into their desks or lockers? Or do you mean that they are turning on their computers, logging into your system, checking their calendar, etc.? Employees may clock in and do the first set of tasks. Employees should clock in before doing the second set of tasks and starting the work day. If you require employees to clear their desks at the end of each day, that is compensable time. Employees must clear their desks, then clock out.

Donning and Doffing

While this may sound like Tweedle-dee and Tweedle-Dum from Alice in Wonderland, this is actually the term for putting on and taking off uniforms, clothing, personal protective equipment (PPEs), etc. Both federal and state regulations cover this.

Federal Fair Labor Standards Act (FLSA)

In general, the federal regulations state that if the donning and doffing is part of the “normal” work activities, they don’t need to be paid. However, if it is an “integral part of the job” then it must be compensated.

California’s Working Time

In California, whether the time is considered “working” time or not depends on a variety of circumstances, including:

  • Whether wearing the clothing, equipment or gear is mandatory or optional
  • If employees must to change at work or if they can change at home before/after their shift
  • How much time the changing process requires and how difficult it is
  • Whether the clothing, equipment or gear is necessary and integral to performing the job duties

Smartphone and Connections

What about employees doing electronic tasks after hours? With the growth of technology, pretty much everyone has a smart phone. But, be careful. If a non-exempt employee is answering/making calls or texts after hours, that is “working time” and they should be paid for that time.

This often comes up when a non-exempt employee is doing something like scheduling. Another employee can’t make it, so they call/text the scheduler and the scheduler then needs to then call/text other employees to fill in. Or if your employees use their personal phone to return a call and then the client/customer calls them directly. You need to require employees to let you know when these calls/texts/emails occur. Remind employees about your policy. Make sure they know that they need to talk to you about any off-the-clock work that is occurring.

Best practices for mitigating risks

  • Maintain clear policies forbidding off-the-clock work and establish procedures for employees to report all time worked.
  • Require employees to promptly notify the employer, in writing, if:
    • any work is performed before clocking in, after clocking out, or during any meal period
    • any wage statement does not accurately state the number of hours worked during the pay period for which the wage statement is issued
  • Your policy should state that it is the employee’s responsibility to check the wage statement and immediately notify the employer (preferably in writing) of any mistakes.