Q: DUE to being short-staffed and the need to meet critical deadlines, I have been coming to work earlier and leaving later than my scheduled shift. My boss knows I am doing this and even though the company has a ‘no unauthorized overtime’ policy, I have not been told to stop. I am an hourly employee and do not have executive, managerial or administrative duties. Am I supposed to be paid for the extra hours that I worked even though the company did not ask me and I may not be authorized to work those extra hours?
A: Yes, you should be paid for the hours you worked before or after your scheduled shift even though your employer has not directly asked you or authorized you to perform work outside your scheduled shift. These extra hours are termed "off the clock" hours because they occur outside an employee’s regular work hours or shift. If by working outside your shift you end up working more than 8 hours per day or more than 40 hours per week, you are additionally entitled to the overtime rate of 1½ times your regular rate.
Under California laws, off-the-clock hours are considered "hours worked." "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. To be "suffered or permitted" to work means that the employer knows or believes that the employee is working and allows the employee to continue doing so.
Aside from coming to work early and working before the shift’s official starting time or leaving work after the shift’s official end time, there are other work-related activities before or after the scheduled shift that fall within the scope of "work time." "Work time" is essentially the time an employee spends on activities that are controlled by and for the benefit of the employer. This includes all the time that the employee is required to be present at the workplace. Pre-shift "roll calls," pre-shift meetings (for example, safety meetings), and setting up equipment before the official start time of a shift are some of these activities.
Employees may similarly "stay late" and perform work after their designated shift time is over. Time spent by an employee cleaning equipment after the close of a shift or time spent on job-related activities "on the way home" (for example a secretary who drops off the day’s mail at the post office or delivers some paperwork to a customer or supplier) are some such activities. Some employees may take work home or are contacted at home by telephone for work-related reasons or are "called back" to work. All of these post-shift activities fall within work time and, therefore, should be paid.
If any of the activities above caused the employees to incur overtime hours, then California Labor Code requires that the employees 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. An employer’s failure to compensate its employees for work hours or work time incurred in excess of the employee’s scheduled hours may result in an expensive employment lawsuit against the employer.
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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 December 12, 2009 in Asian Journal Los Angeles p. C4 )
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