Can My Employer Make Me Work Off the Clock? — In Plain Words

This page is general information only. It is not legal advice.

This page explains the federal rule for work done off the clock.

It is about the Fair Labor Standards Act.

People call it the FLSA for short.

This page covers the federal rules only.

It does not cover any state rule.

Every rule on this page comes from two sources.

One source is Fact Sheet #22 from the U.S. Department of Labor.

The other source is the federal rules at 29 CFR sections 785.11 to 785.13.

The management-duty rule is printed under its own heading at section 785.13, because that is the section where that wording appears.

The two sources are kept apart on this page.

Each part is labeled with the source it came from.

Where the two sources say things in different ways, this page does not merge them into one rule.

The short answer

No.

Work an employer knows about, or has reason to believe is being done, is work time.

It is work time even if the employer did not ask for it.

Fact Sheet #22 states it this way.

Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer.

Section 785.11 states it in its own words.

Work not requested but suffered or permitted is work time.

Section 785.12 adds the counting rule for work away from the workplace.

If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.

This page states the rules as the Department of Labor states them.

It does not decide whether any one person's time counts in a real case.

Only the employer or the U.S. Department of Labor can decide a real case.

Fact Sheet #22: what the sheet covers

Fact Sheet #22 opens by saying it provides general information concerning what constitutes compensable time under the FLSA.

The sheet states the Act's basic pay rules this way.

The Act requires that employees must receive at least the minimum wage and may not be employed for more than 40 hours in a week without receiving at least one and one-half times their regular rates of pay for the overtime hours.

The amount employees should receive cannot be determined without knowing the number of hours worked.

Fact Sheet #22: the meaning of "employ"

Fact Sheet #22 has a part called "Definition of 'Employ.'"

It states this definition.

By statutory definition the term "employ" includes "to suffer or permit to work."

The sheet then states what the workweek and the workday include.

The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place.

"Workday", in general, means the period between the time on any particular day when such employee commences his/her "principal activity" and the time on that day at which he/she ceases such principal activity or activities.

The workday may therefore be longer than the employee's scheduled shift, hours, tour of duty, or production line time.

Fact Sheet #22: employees "suffered or permitted" to work

Fact Sheet #22 has a part called "Employees 'Suffered or Permitted' to work," under "Application of Principles."

It states this rule.

Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer.

The sheet gives this example.

For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors.

The reason is immaterial.

The hours are work time and are compensable.

That is the sheet's wording.

Section 785.11 below states the same rule in different words, and this page keeps the two wordings apart.

Fact Sheet #22: a typical problem the sheet names

Fact Sheet #22 has a part called "Typical Problems."

It says problems arise when employers fail to recognize and count certain hours worked as compensable hours.

It gives this example.

An employee who remains at his/her desk while eating lunch and regularly answers the telephone and refers callers is working.

This time must be counted and paid as compensable hours worked because the employee has not been completely relieved from duty.

29 CFR § 785.11: work not requested but suffered or permitted

Section 785.11 is headed "General."

It sits under the heading "Employees 'Suffered or Permitted' to Work."

Section 785.11 states this rule.

Work not requested but suffered or permitted is work time.

The section gives this example.

For example, an employee may voluntarily continue to work at the end of the shift.

He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records.

The reason is immaterial.

The employer knows or has reason to believe that he is continuing to work and the time is working time.

That last sentence is the section's knowledge test.

The time counts when the employer knows, or has reason to believe, the employee is continuing to work.

29 CFR § 785.12: work performed away from the premises or job site

Section 785.12 is headed "Work performed away from the premises or job site."

It states the whole rule in two sentences.

The rule is also applicable to work performed away from the premises or the job site, or even at home.

If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.

So the same knowledge test applies away from the workplace and at home.

The section does not limit the rule to work done at the employer's building.

29 CFR § 785.13: duty of management

Section 785.13 is the next section under the same "Suffered or Permitted" heading.

It is headed "Duty of management."

It states this rule.

In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed.

It cannot sit back and accept the benefits without compensating for them.

The mere promulgation of a rule against such work is not enough.

Management has the power to enforce the rule and must make every effort to do so.

In plain words, a written rule against off-the-clock work, by itself, does not meet this section.

Management must use its control to stop work it does not want done.

If it accepts the benefits of the work, it must compensate for the work.

The Wage and Hour Division number printed on Fact Sheet #22

Fact Sheet #22 ends with the name and address of the Wage and Hour Division.

It names the Wage and Hour Division as an agency within the U.S. Department of Labor.

It prints this address.

200 Constitution Ave NW, Washington, DC 20210.

It prints this phone number.

1-866-4-US-WAGE.

It also prints the same number in figures only.

1-866-487-9243.

Those are the numbers exactly as the sheet prints them.

The rules on this page turn on what the employer knows or has reason to believe. That is the test both anchors state, in the separate wordings printed above.

What these sources do not decide

Fact Sheet #22 and sections 785.11 to 785.13 state general rules.

They do not decide whether any one person's off-the-clock time counts in a real case.

This page does not decide any one person's case either.

This page covers the federal floor only.

It states no state rule and no Oklahoma rule.

Where the sheet and the sections are silent, this page is silent too.

Fact Sheet #22 opens by saying it provides general information concerning what constitutes compensable time under the FLSA.

This page is general information only. It is not legal advice.