Working off the clock is illegal in Texas (and elsewhere)

clockSometimes Texas workers believe that they must be as helpful as possible to an employer, even if it means working off the clock. For example, sometimes workers come in early to help an employer set up for that day’s work, but they don’t punch in for that period. Or, sometimes, an employee participates in work during lunch hours that isn’t counted toward their work hours for that week. Under the Fair Labor Standards Act (FLSA), work that is not counted toward overtime or goes uncompensated is illegal.

The FLSA requires that nonexempt employees be paid overtime if they work more than 40 hours per week for all work done. Most employees are considered nonexempt and are covered by the FLSA for the purposes of overtime, as well as the minimum wage. Exempt employees are those who are considered professional, administrative, or executive, or are within certain industries such as commission-based sales.

All work for an employer should be on the clock. If an employer requires or allows employees to do any work for it without compensating the employee and counting it toward weekly hours for the purposes of calculating overtime, it is “off the clock.” What counts as work? Whenever an employee engages in work that’s not requested but allowed, such as helping a colleague or coming in early to set up, this is work that is completed and should still be compensated.

For example, if you wait for work at the job site at your employer’s request, even though you are not actively working, this is likely off-the-clock work. Similarly, if you spend time beyond your 40-hour workweek completing paperwork or meeting with your supervisor, this is work that should not be off the clock and should be compensated. Similarly, if you set up a restaurant or another hospitality site before your shift, this is work that should be compensated. Likewise, if you close up the bar after your shift, this is work that should be compensated.

Off-the-clock work is usually illegal. As a covered employee, you can recover up to three years of back wages for unpaid labor, and you may be able to recover liquidated damages as well. Under the FLSA, you’re supposed to receive time and a half of your regular rate of pay if you work over 40 hours in a single workweek. Over the years, missed overtime pay can add up and become quite substantial, even if you are paid only minimum wage. In order to avoid paying you liquidated damages, your employer must be able to show it acted in good faith and had investigated whether the FLSA would apply to the category of employees to which you belong.

Employers do not always seek or receive good legal advice on whether the FLSA applies to them or a particular category of worker. Your employer may not be correct about whether you should or should not be paid for time you spend on its behalf. For example, in some industries, waiting for work is the norm. However, in many cases, workers who wait for work are supposed to be compensated.

Sometimes employees feel that since they elected to work off the clock due to ambition or other reasons, they should not bring a lawsuit later. However, you can change your mind and ask for back pay if you are covered by the FLSA.

If you are entitled to overtime for working off the clock, you should retain an experienced Texas attorney. Contact us at (214) 528-6500 or via our online intake form.

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