Beware of Work Off the Clock

Under California Labor Law, it is illegal to make, or allow workers to work “off the clock”. Work off the clock can be due to a request made by an employer or simply because the employee decided to stay late or come in early and work off the clock. This can include answering work emails or texts at home. Either way, you could be liable for back wages and penalties, which can be many times higher than the wages would have been.

Starbucks Case

Working off the clock has become a new favorite of attorney’s filing labor board claims and lawsuits on behalf of employees. What has made it more prominent in recent years is a case against Starbucks (Starbucks vs Troester) where Starbucks required employees to work just a couple minutes per day off the clock doing incidental work. Incidental work was previously considered “de minimis” time and not necessarily compensable. The Starbucks case certainly changed this rule, and opened the floodgates for lawsuits, especially for California.

The Starbucks employees who closed the store, were required to clock out, then on their way out, set the alarm, lock the facility and then leave. Just a few minutes, but every day.

The case was tried, Starbucks prevailed, but it was later appealed, and the original decision was overturned.

Examples of Work off the Clock

Other types of tasks that can be considered compensable:

• Taking trash on the way out to lunch or after clocking out at the end of the day
• Dropping off overnight mail packages after clocking out or delivering mail to the post office on the way home
• Answering an email from a manager or business owner in the evening
• Employee voluntarily stamping envelopes while eating lunch at their desk

You can probably think of a few more but you get the idea. Even if the employee chooses to work off the clock, if it is known to you that they are doing this, you could be liable just the same as if you required the work.

How to Fix the Problem

We would all like to think that our employees always have our best interests at heart, and many do indeed. However, you always need to protect yourself and your business from potential liabilities with regards to wage and hour violations. Wage and hour violations are the easiest to avoid, but the most common labor board claim and lawsuits filed by employee. Here are a few ideas:

• Have a strong policy against working off the clock in your handbook
• Use electronic timekeeping – regularly review time punches
• Limit access to technology – do employees need work email on their phone?
• Train your managers in wage and hour laws – Infinium offers manager HR training
• Make sure employees understand that unapproved overtime and any work off the clock is prohibited
• Review and identify where your weaknesses are and implement better control of hours worked where necessary

Lawsuits and Labor Board claims can be expensive, and attorney’s will usually throw everything at the wall when they have a claimant that works in a knowingly lax workplace. Starbucks can afford labor battles with employees, small businesses cannot.

Its worth the extra time and effort to review your workplace behavior and implement policies and guidelines for supervisors and employees to prevent work off the clock.

Contact the experts at Infinium HR for assistance, info@infiniumgroup.com or 951-816-6434.