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Under the federal Fair Labor Standards Act (FLSA), a covered nonexempt employee generally must be paid for work the employer knows or has reason to know is being done—even if a manager did not approve it in advance. Employers may enforce rules about overtime approval, but those rules do not erase the duty to record and pay for compensable time actually worked. What counts as work, and which protections apply, can depend on the job and the state or locality.
What does “working off the clock” mean?
Off-the-clock work is work time that an employee performs but that is not recorded or paid. It can happen before or after a scheduled shift, during a meal break, at home, or while an employee is waiting under circumstances that make the time work. The U.S. Department of Labor (DOL) describes covered work as work an employer “suffers or permits.” Its Fact Sheet #22 explains: “Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer.”
Common examples
- Staying late to finish an assigned task or correct errors.
- Setting up before a shift or cleaning up after it when those tasks are work.
- Taking assigned work home or handling work messages and calls outside scheduled hours.
- Working through a meal period instead of being fully relieved from duty.
- Waiting when the employee is “engaged to wait,” or remaining on the employer’s premises while on call.
Whether a particular activity counts as work depends on the facts. For example, home on-call time is usually not work, but significant restrictions on an employee’s freedom can change the analysis. The DOL’s off-the-clock guidance discusses these examples.
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Is it illegal to work off the clock?
The key federal issue is generally whether the employer failed to count and pay for compensable work—not simply whether the employee worked without permission. If a covered nonexempt employee performs work that the employer knows or has reason to know about, the time generally must be recorded and paid. The DOL’s FLSA Hours Worked Advisor states, “Merely making a rule against such work is not enough.”
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An employer can require advance approval for overtime and address violations of that policy through appropriate management action. But a no-overtime rule does not make hours already worked unpaid. As the DOL explains, management must exercise control to prevent unwanted work; if the employer accepts the work or knows, or has reason to know, that it continues, a rule against it alone does not resolve the payment obligation.
Do I have to be paid for work before my shift?
Generally, if you are a covered nonexempt employee and perform compensable work before your shift with the employer’s knowledge or reason to know, that time must be counted and paid under the FLSA. The same principle applies to work after a shift or away from the workplace. Whether a particular task or period is compensable depends on the circumstances.
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Breaks, meetings, and waiting time
- Meal periods: A meal period is generally unpaid only when the employee is completely relieved from duty. If you keep working while eating, that time may be compensable.
- Short rest breaks: Breaks that are usually 20 minutes or less are generally paid.
- Meetings and training: Time can be excluded only when all four conditions apply: it is outside normal hours, voluntary, not job-related, and no work is performed at the same time.
- On-call time: Required on-premises on-call time is generally work. Home on-call time is usually not work unless the restrictions on the employee’s freedom are significant.
These are general federal rules, not a determination about a specific shift or job. See the DOL’s hours-worked guidance for further detail.
What pay is required for off-the-clock hours?
For covered nonexempt employees, the federal baseline is at least the applicable federal minimum wage for all compensable hours and overtime pay at one and one-half times the regular rate for hours over 40 in a workweek. The 40-hour threshold is per workweek; it is not averaged across multiple weeks. State or local law may provide a higher minimum wage, additional overtime protections, or other rules.
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Coverage and exemption status matter. This federal overview does not determine whether a particular worker or employer is covered or whether an exemption applies. The DOL’s Fact Sheet #22 describes the federal hours-worked baseline.
How can employers prevent off-the-clock work?
Prevention requires more than a written policy: the work must not be requested or allowed without being recorded, and time that is worked must be handled accurately.
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- State the rule clearly. Tell employees to record all time worked and promptly report work outside scheduled hours. Explain that approval rules govern scheduling and discipline, not whether worked time gets recorded.
- Train supervisors. Make clear that pre-shift setup, post-shift cleanup, remote messages, calls, and “quick favors” must not be requested or accepted without recording the time.
- Respond to reports of missing time. Investigate the work, correct inaccurate records, and pay compensable time. Do not treat a missed approval as proof that no work occurred.
- Review for patterns and exceptions. Compare time records with schedules, system logs, missed punches, interrupted meal periods, and recurring work before or after shifts. Correct exceptions rather than assuming scheduled times capture all work.
- Use a recordkeeping method that stays accurate. Federal rules do not require a particular time clock or format. Employers may use a time clock, timekeeper, or employee-entered records, provided the records are complete and accurate. Software can help capture time, but the employer remains responsible for accuracy.
- Retain records for the required period. DOL Fact Sheet #21 says payroll records are generally kept at least three years, while records used for wage computations, such as timecards, are generally kept two years. Check current regulations and any longer state, litigation, or policy retention requirements before setting a schedule.
The DOL outlines employer recordkeeping in Fact Sheet #21 and its recordkeeping guidance.
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What should workers do if time is missing?
- Keep a contemporaneous personal log. Record dates, start and stop times, breaks, tasks, work messages or assignments, and requests to correct time. A paper logbook or an employee timesheet notebook can be a convenient aid; it does not replace the employer’s recordkeeping responsibility.
- Save relevant documents. Keep schedules and pay statements, where lawful and appropriate, along with copies of written time-correction requests.
- Ask for a correction in writing. Describe the dates and time worked, request an adjustment, and retain a copy of the request.
- Contact the DOL if needed. The Wage and Hour Division provides information and accepts complaints. Its guidance says FLSA complaints may be oral or written.
The DOL provides a free timesheet app and printable work-hours calendar through its recordkeeping resources. The DOL also describes FLSA retaliation protections in Fact Sheet #77A. Most courts have treated internal complaints as protected, but how retaliation law and remedies apply depends on the facts.
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What this federal overview does not decide
The FLSA is a federal baseline, not a complete answer for every worker. State and local wage laws may add protections or apply different rules. Work location, worker status, job duties, coverage, exemptions, and the circumstances of the work can all affect the result. For an individual dispute, consult the relevant state labor agency or a qualified employment-law professional in addition to the DOL’s federal guidance.
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