Under the U.S. Fair Labor Standards Act (FLSA), covered nonexempt employees generally must be paid for all work their employer “suffers or permits”—including work done before or after a shift, at home, or without advance approval. Employers may enforce scheduling rules, but a no-overtime policy does not make hours actually worked unpaid. State and local laws may provide additional protections.
What “working off the clock” means
Off-the-clock work is job-related work that an employee performs but does not record or receive pay for. Under the FLSA, work may be compensable even if it was not requested, happened outside scheduled hours, or violated a rule requiring advance approval. The Department of Labor (DOL) describes this as work an employer “suffers or permits.” Its off-the-clock guidance and Fact Sheet #22 explain the federal baseline.
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Examples of work that may have to be paid
- Before or after a shift: Setting up, finishing an assigned task, cleaning up, or correcting mistakes may count when the work is for the employer and the employer knows or has reason to know it is being done.
- Work at home or elsewhere: Taking assignments home or answering work messages outside scheduled hours can be compensable work.
- Meal periods: A meal period is generally unpaid only when the employee is completely relieved from duty. Working while eating can make that time compensable.
- Short rest breaks: Short breaks, usually 20 minutes or less, are generally paid.
- Waiting and on-call time: Waiting may count when the employee is “engaged to wait.” Required on-premises on-call time is generally work; home on-call time is usually not, unless restrictions on the employee’s freedom are significant.
- 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 during it.
These are general federal rules; the facts of the job and applicable state or local law can affect the result. The DOL’s Hours Worked Advisor provides more detail on whether particular time is work.
Why unauthorized overtime still may need to be paid
An employer can require employees to get approval before working overtime and can address violations of that policy. But approval and pay are separate questions. 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, even when a supervisor did not authorize it. The DOL’s Hours Worked Advisor states: “Merely making a rule against such work is not enough.”
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For covered nonexempt employees, the federal baseline is at least minimum wage for every compensable hour and overtime at one and one-half times the regular rate for hours over 40 in a workweek. A policy against overtime does not remove the obligation to pay for overtime that was actually worked. See the DOL’s Fact Sheet #22.
How employers can prevent off-the-clock work
- Make the rule clear: Tell employees to record all time worked and promptly report work outside their schedules. Explain that advance-approval rules govern scheduling and discipline, not whether time worked gets recorded and paid.
- Train supervisors: Do not ask employees to set up before clocking in, finish tasks after clocking out, handle remote messages or calls, or do “quick favors” without recording the time.
- Respond to reports: When an employee reports missing time, investigate, correct the records, and pay any compensable time. Address policy violations separately.
- Review for patterns: Compare time records with schedules, system logs, missed punches, interrupted meal periods, and recurring work before or after shifts. Do not assume scheduled hours capture every hour worked.
- Use accurate recordkeeping: Federal rules do not mandate a particular time clock, software, or format. Employers may use a time clock, timekeeper, or employee-entered records, but must keep complete and accurate records. Software can help; it does not transfer the employer’s responsibility for accuracy. See the DOL’s Fact Sheet #21 and recordkeeping guidance.
- Retain records appropriately: DOL fact sheet guidance says payroll records are generally kept for at least three years and records used for wage computations, such as timecards, generally for two years. Check current regulations and any longer state, litigation, or company-policy requirements before setting a retention schedule.
What workers can do if time is missing
- Keep a contemporaneous log: Note work dates, start and stop times, breaks, tasks performed, work messages or assignments, and any requests to correct time. A paper logbook or an employee timesheet notebook can help; it does not replace the employer’s recordkeeping duty.
- Save relevant records: Keep schedules, pay statements, and communications where lawful and appropriate.
- Raise the issue in writing: Ask the employer to correct missing hours and keep a copy of the request and response.
- 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’s Fact Sheet #77A explains the federal anti-retaliation protections; whether a particular complaint is protected and what remedy applies depends on the facts.
Federal law is only the starting point
This article describes the federal FLSA baseline, not a determination about a particular worker or employer. Coverage, employee status, exemptions, duties, and work location can change the analysis. State and local wage laws may add protections or use different rules, so check the relevant labor agency for the place where the work was performed.
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