Abstract
An increasingly common wage and hour issue involves allegations of employees working “off the clock.” Employees are said to be “on the clock” between the time they clock in and the time they clock out, that is, the time for which employees are being paid. In contrast, employees are not being paid either before or after their shifts, during which time they are said to be off the clock. When employees are performing compensable work during a time for which they are not being paid, they are working off the clock. Off the clock work can occur in a variety of ways. Some of the more frequent allegations include employees starting work before clocking in, clocking out before finishing work, performing work from home but not reporting the time (e.g., work-related phone calls or emails), donning or doffing required uniforms or equipment before or after shifts, time shaving (i.e., paying employees for fewer hours than they worked), or improper time clock “rounding” practices. Employers can be liable for significant damages for not paying employees for the total amount of time worked. An evaluation of an off the clock claim requires a comparison of the amount of time worked to the amount of paid time. It often becomes the job of an expert retained in these cases to collect reliable data to retrospectively “recreate” the actual time worked so that it can be compared to paid time. In some instances, this can be accomplished using existing electronic data such as phone records, email records, register data, computer activity data, or security badge entries. In other instances, electronic data is either unavailable or insufficient to answer relevant legal questions, and collecting data from other sources is necessary. Observations and self-report approaches may be applicable for this purpose. This chapter provides examples of several common types of off the clock work along with methodological options for measuring the frequency and duration of these activities. In addition, strategies for preventing off the clock work are provided.
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Notes
- 1.
29 U.S.C. §§ 206–207 (2012).
- 2.
Alaska Stat. §§ 23.10.050–23.10.150 (2016); Cal. Lab. Code § 510 (2016); Nev. Rev. Stat. § 608.018 (2016).
- 3.
There are various other legal questions in these cases such as whether the employer had knowledge of employees performing work off the clock. These types of questions are not typically addressed through a systematic study.
- 4.
Chap. 3 discussed issues in relation to classification of employees as exempt or nonexempt from the FLSA.
- 5.
Kearns (2002).
- 6.
See, e.g., Lamarr et al. v. Illinois Bell Telephone Co. et al.
- 7.
See, e.g., Faust et al. v. Comcast Cable Communications Management LLC.
- 8.
See, e.g., Davenport v. Charter Communications, LLC.
- 9.
See, e.g., Williams v. AmerisourceBergen Drug Corporation.
- 10.
See, e.g., Brown et al. v. Permanente Medical Group Inc.
- 11.
See, e.g., Holmes v. Kelly Services USA LLC et al.
- 12.
See, e.g., Sheffield v. BB&T et al.
- 13.
See, e.g., Volney-Parris v. Southern California Edison Company.
- 14.
Work simulations are a common technique in other areas of human resources such as validation of personal selection procedures. See Whetzel et al. (2012) for additional information about work simulations.
- 15.
Integrity Staffing Solutions v. Busk.
- 16.
Murphy v. Caremark CVS Corp. et al.
- 17.
Ogiamien et al. v. Nordstrom Inc.
- 18.
Narez v. Macy’s West Stores Inc.
- 19.
Frlekin et al. v. Apple Inc.
- 20.
Chavez v. Converse Inc. et al.
- 21.
Rodriguez v. Nike Retail Services Inc. et al.
- 22.
See, for example, Murphy v. Caremark CVS Corp. et al.
- 23.
See 29 C.F.R. §785 et seq.
- 24.
One well-known case involving donning and doffing against Tyson foods is highlighted at the end of Chap. 8.
- 25.
Martin v. City of Richmond.
- 26.
Sandifer v. U.S. Steel Corp.
- 27.
See Martocchio (2011).
- 28.
Milkovich and Wigdor (1991).
References
Kearns, E. C. (2002). “Off-the-clock” time-when is it compensable? Boston: Epstein Becker & Green.
Martocchio, J. J. (2011). Strategic reward and compensation plans. In S. Zedeck (Ed.), APA handbook of industrial and organizational psychology (pp. 343–372). Washington, DC: American Psychological Association.
Milkovich, G. T., & Wigdor, A. K. (1991). Pay for performance. Washington, DC: National Academy Press.
Whetzel, D. L., McDaniel, M. A., & Pollack, J. M. (2012). Work simulations. In M. Wilson, W. Bennet, S. Gibson, & G. Alliger (Eds.), The handbook of work analysis: The methods, systems, applications and science of work measurement in organizations. New York: Routledge.
Statutes and Regulations
29 U.S.C. §§ 206–207 (2012).
See 29 C.F.R. §785 et seq.
Alaska Stat. §§ 23.10.050–23.10.150 (2016).
Cal. Lab. Code § 510 (2016).
Nev. Rev. Stat. § 608.018 (2016).
Court Cases
Brown et al. v. Permanente Medical Group Inc., No. 3:2016cv05272 (N.D. Cal.).
Chavez v. Converse Inc. et al., No. 5:15-cv-03746 (N.D. Cal.).
Davenport v. Charter Communications, LLC, No. 4:12-cv-00007 (E.D. Mo.).
Faust et al. v. Comcast Cable Communications Management LLC, No. 1:10-cv-02336 (D. Md.).
Frlekin et al. v. Apple Inc., No. 3:2013cv03451 (N.D. Cal.).
Holmes v. Kelly Services USA LLC et al., No. 2:2016cv13164 (E.D. Mich.).
Integrity Staffing Solutions v. Busk, 574 U.S. ___ (2014).
Lamarr et al. v. Illinois Bell Telephone Co. et al., No. 1:15-cv-08660 (N.D. Ill.).
Martin v. City of Richmond, 504 F. Supp.2d 766 (N.D. Cal. 2007).
Murphy v. Caremark CVS Corp. et al., No. BC464785 (Cal. Super. Los Angeles).
Narez v. Macy’s West Stores Inc., No. 5:16-cv-00936 (N.D. Cal.).
Ogiamien et al. v. Nordstrom Inc., No. 2:13-cv-05639 (C.D. Cal.).
Rodriguez v. Nike Retail Services Inc. et al., No. 5:14-cv-01508 (N.D. Cal.).
Sandifer v. U.S. Steel Corp., 571 U.S. ____ (2014).
Sheffield v. BB&T et al. No. 7:16-cv-00332 (E.D.N.C.).
Volney-Parris v. Southern California Edison Company, No. BC493038 (Cal. Super. Los Angeles).
Williams v. AmerisourceBergen Drug Corporation, No. 1:17-cv-06071 (N.D. Ill.).
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Hanvey, C. (2018). Off the Clock Work. In: Wage and Hour Law. Springer, Cham. https://doi.org/10.1007/978-3-319-74612-8_5
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