Knowing Your Rights: As an Employee, is it Illegal to Be Working off the Clock?


HR Practices

There are different ways that working off the clock can be illegal. This can include an employee voluntarily staying after hours to finish something up or even an employer requiring an employee to work beyond their shift – without paying at all for extra hours or even by providing regular rather than overtime pay for those extra hours.

If you think your employer isn’t treating your off-the-clock hours legally, be sure to read the rest of this article to help you decide. If there is a legal issue involved, there are ways that this can be resolved without risking your job in the process.

The Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) has established specific guidelines requiring a majority of employees in most industries to abide by the minimum wage, overtime pay, and other requirements. However, these laws may not be required for businesses grossing less than $500,000 annually.

For overtime pay, nonexempt employees must be paid at least a time-and-a-half their regular hourly wage once they reach 40 hours of the workweek. According to the U.S. Department of Labor, extra pay for night or weekend shifts is not required. Rather, specific employers may have their own policies for extra weekend or night shift pay.

Qualified employers who fail to follow the FLSA that are supposed to may be subject to a civil money penalty and/or other consequences if found guilty.

Types of Off the Clock Work

There are specific types of off-the-clock work that are legally required to be paid for by most employers. These include:

  • Post-shift work

As discussed, it is illegal for most employers to not pay employees the legal overtime rate for working past their shift. Clean-up is included as a part of a shift.

  • Work preparation

Employees must be paid for any preparation on the job. This can include cleaning, setting up tables, prepping food, and the like. Hours are still to be paid for time worked even before the place of work is officially open to the public for the day.

  • Rework

In certain scenarios, it is illegal to ask an employer to provide rework of an assignment or fix mistakes without paying them for it. However, this will not apply to all employers.

  • Time between assigned tasks

When an employer is waiting for a new task, they must still be paid for their time on the job even though they may not technically be working at the time.

  • Administrative work

Most employees legally have to be paid for filling out paperwork, going to meetings, and training or being trained by another employee.

Based on the above types of off-the-clock work, there are many ways an employee’s pay is protected. Some employers forget that their employees’ time is precious and worth being paid for every minute on the job.

Again, because some employers or certain work industries may not have the same requirements for paying their employees, please conduct research to ensure your employer/industry is included.

Employees who may be exempt from overtime pay include, but are not excluded to, volunteer workers for most non-profit businesses, seamen, criminal investigators, employees working for small farms or small newspapers, independent contractors, and the like.

Recuperating Overtime Pay Never Received

If you are currently in the midst of not being paid to work overtime (either with, without, or with less pay), there is something you can do.

First things first, it is important that your employer receives the necessary legal attention if they are refusing to pay you extra for overtime work. That said, you can learn more about off-the-clock work from Brady and Associates and what you can do legally to resolve it.

Apart from putting an end to illegal off-the-clock working, it is important that you recover overtime pay you rightfully deserve but never received from your employer. It is possible to receive up to three years of overtime pay owed if you file a claim with the Department of Labor. If you win, you may even be reimbursed for attorney’s fees.

Know that when you file a complaint against an employer for not complying with the FLSA, they cannot fire you or retaliate against you. Your job will be protected in the case that you submit a claim against an employer’s wrongdoings.

But before you take any legal action, always confirm that your specific employer is required to you pay overtime in your state, in what cases, and how much. There are some exemptions that may make it legal for an employer to not pay overtime for their employees.

Preventing Future Illegal Off the Clock Working

Simply knowing your legal rights is a first step in ensuring you won’t be dealing with illegal off-the-clock work. This background knowledge will help you to decide if your employer or future employer is doing what is right when it comes to paying you the right amount.

Some employers who don’t pay overtime may not only do it because they don’t want to pay extra but also because they may believe their employees won’t know the laws behind overtime pay, and thus, that their employers won’t file anything against them. But it is important that you recognize if something like this happens and know who to turn to.

As an employee, never accept or volunteer to do extra work without confirming overtime pay with your employer. Even by volunteering and telling your employer that they don’t have to worry about paying you extra, this is an easy way an employer to take advantage of you in the future. On both sides, for both employees and employees, play it fair.


While it is illegal in most cases according to the Fair Labor Standard Act, it is not uncommon for employers to not follow the legal aspects of paying their employees overtime. But as an employee, you can receive the legal help necessary to ensure you get paid for previous work and stop an employer from continuing their illegal habits.

Before assuming your employer is going against the FLSA, make sure you know for a fact that your employer can be held accountable.


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