Q: I WORK as a driver/courier for a service-oriented company. I am often asked by my supervisor to pick up packages an hour or two before my regular clock in time. However, my supervisor told me to always clock-in at my regular clock in time. So even though I work an extra one or two hours every day, I am only paid 8 hours and not 9 or 10 hours. Should I be paid for the work that I do outside of my regular scheduled hours?
A: Yes, you should be paid for the extra hours you worked even though such work was done before your scheduled hours. Such extra hours are termed "off the clock" hours because they occur outside an employee’s regular work hours or shift. In this instance, you are additionally entitled to the overtime rate of 1½ times your regular rate for any work in excess of 8 hours per day.
Off-the-clock hours are incurred, for example, when employees work at 8 AM even though scheduled to start at 9 AM, or they finish work at 6 PM even though scheduled to end at 5:30 PM. Off-the-clock hours are still considered "hours worked."
Under California laws, "hours worked" is defined as the time during which an employee is subject to the control of an employer. It includes all the time the employee is suffered or permitted to work, whether or not required to do so. If the employer tells the employee to come in and perform work (even if outside the employee’s scheduled work hours or shift), or if the employee tells the employee to finish work regardless of the employee’s clock out time, then the employee is, therefore, required to work. The employee should be paid for this time. If off-the-clock hours exceed 8 hours per day or 40 hours per week, the employee should be paid overtime.
The California Labor Code requires that non-exempt employees (i.e. employees who do not fall under the executive, administrative, or professional exemptions in the Wage Orders) must be paid overtime compensation if they worked any hour or a fraction of an hour in excess of 8 hours per day or more than 40 hours per work week. The employee must be paid at the premium rate of 1 ½ times the employee’s regular rate if the employee worked more than 8 but less than 12 hours in a work day. If the employee worked more than 12 hours in a work day or in excess of 8 hours on the seventh day in a work week, the employee is entitled to double the employee’s regular rate.
Perhaps one of the greatest hurdles that off-the-clock employees face when it comes to collecting for unpaid wages is how to prove that they performed off-the-clock work. By its very nature, off-the-clock work cannot be tracked or demonstrated by the usual time clock methods. Even though employers are required by law to keep accurate time records, employees cannot simply rely on an employer’s time-keeping records to substantiate claims for off-the-clock work. Employees may look to other means. The simplest, of course, is for employees to keep a contemporaneous personal diary of their hours worked.
However, absent a personal timesheet, there might still be other means that an employee can prove off-the-clock hours. Such an employee would be better served to consult with an experienced employment attorney to discuss possible options.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088.
( Published October 24, 2009 in Asian Journal Los Angeles p. C3 )
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