[COLUMN] When ‘voluntary’ work off-the-clock should be paid

Q: I WORK in healthcare where there is a strict policy of no unapproved overtime, and no going on breaks unless we have a reliever. We are forced to skip our breaks if there is no reliever (which happens a lot because we are often understaffed). As for overtime, we don’t even ask for approval anymore since we risk being written up for “too much overtime.” We just clock out and go back to work to finish our work. I recently complained to our supervisor but was told that if I “voluntarily” skip breaks or voluntarily work off the clock, this is not the hospital’s problem. This seems unfair. Do we have remedies?

A: Yes. Assuming you’re not on an Alternative Work Schedule (AWS), you should be paid for the extra hours you worked even if they are “off the clock.” If these extra hours go beyond 8 hours per day, then you are entitled to the overtime rate of 1½ times your regular rate for any work in excess of 8 hours per day or two times your regular rate for any work beyond 12 hours per day. Also, you should be paid a one-hour premium for any missed lunch break, and another one hour-premium for any missed rest break.

The fact that your employer considers your missed breaks and off-the-clock work “voluntary” is disturbing and likely violates the law. In California, there are clear laws for volunteers and what constitutes “voluntary work.” First of all, where there is an employment relationship between a worker and a company, that worker cannot be treated as an unpaid volunteer when performing their regular work for the employer during the employee’s work period.

In order to qualify as “volunteers” the persons must perform services for a civic, charitable, or humanitarian reasons, without promise, expectation, or receipt of compensation. Moreover, they must offer their services freely and without direct or indirect pressure or coercion. Finally, to qualify for volunteer services, the services must not be the same type of services the employee is employed to perform for the employer, and such volunteer work must take place outside the employee’s normal working hours.

Even if there is evidence that some employees voluntarily worked uncompensated overtime, such a “choice” is not permitted under California law. A nonexempt employee may not lawfully volunteer to work off-the-clock without compensation.  The law requires payment for “all hours worked,” and overtime pay for “all hours worked” in excess of a 40-hour workweek.

California’s Court of Appeal has clarified the issue about employees who “voluntarily” skip breaks or work off-the-clock: A “voluntary” act is an act of being “unconstrained by interference; not impelled by outside influence.” Where the employer has instituted policies that limit its employees’ freedom to take breaks, such as chronic understaffing, making patient safety the “number one priority,” having “zero tolerance” for staff who take a break without first being relieved, and requiring that the patient is the “primary commitment” – these policies act as constraints,  making missed breaks mandatory, not voluntary.

Where the employer “fails to provide an employee a meal or rest or recovery period in accordance with a state law… the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.” This means the employee who was not provided a meal or rest period must be paid an additional hour (and up to two hours) at the employees’ “regular rate of compensation” which must include not only hourly wages but all nondiscretionary payments for work performed by the employee.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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