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.
It is important to understand the rules on when employees are entitled to wages for this type of work as some employers have ignored them. Off the clock hours may be incurred before or after the employees’ scheduled shift. For example, an employee who has a shift from 9 am to 5:30 pm may be required to work at 8 am or to finish work at 6 pm . Off-the-clock hours are still considered “hours worked” and must be paid to the employee.
The issue arises in a variety of work situations. Employees may find themselves required to do preliminary work before they actually perform their main job. They may, for instance, be asked to clean or maintain tools or equipment. Employers may also ask them to do postliminary work or complete certain tasks after the end of their shift after such main job is completed.
In one class action that my firm is handling, employees take 15- 20 minutes of off the clock work loading a heavy equipment into their trucks before they commence their regular shift. In addition, after the end of their shift, they prepare reports and complete paperwork at home which take another 15-20 minutes of work. The off the clock work translates into an estimated 6 hours of uncompensated time a month. Since the employees performed overtime work, they are owed a significant amount of wages.
Employees should be paid for all hours worked. Under California law, “hours worked” is that 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. An employee who is allowed by an employer to come in and perform work (even if outside the employee’s scheduled work hours or shift) is engaged in work that should be paid.
Employees should be paid at any time that they are required, suffered or permitted to work. If off-the-clock hours exceed 8 hours per day or 40 hours per week, the employees are additionally entitled to be paid overtime. Given the rights accorded by law to employees, efforts should be made by them to keep records documenting their off the clock work to justify any claim for wages.
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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.joesayas law.com or contact his office by telephone at (818) 291-0088.
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