Are you working OFF THE CLOCK? It Will Cost You!
What will working off the clock really cost you?
Once you are on the job and under the control of your employer, your workday starts and at days end when you leave, your workday stops. Does your workday actually start and stop when you clock in or out? Not necessarily.
This is a story that shows there is more to this issue than one might think.
An employee arrives at work in the morning, has a quick meeting with her supervisor and then she starts up her computer. The employee then logs onto the computer by typing her user ID and password and hitting “Enter”. Once that process is complete, the employee logs into the system. She then opens any programs or applications she needs to perform her job. At the end of the day, the employee is required to follow the process in reverse, logging off and closing down her computer.
Until that employee is logged in and on line, she is not able to enter her start time. At the end of the day she is required to first sign out and then completes the log off procedure.
This system does not allow an employee to be paid for the time spent at work before she is able to log on by starting up her computer as well as being required to sign out and then closing down her computer. This time adds up to more than 25 minutes each day.
There are other examples of work time that must be compensated for under the law that could be overlooked, including changing into uniforms or work and safety clothing. Also included is the after hours preparation of paperwork and the scheduling of appointments for the next day.
Over the years the amount that is owed to an employee could and does add up into the tens of thousands of dollars, including penalties and interest.
An example of the penalties that may be relevant and that would add substantially to the amount owed by the employer is as follows:
1) Unpaid Overtime in Violation of California Labor Code Section 510 and Wage Orders No. 4-2001;
2) Unpaid Overtime (Fair Labor Standards Act);
3) Knowing and Intentional Failure to Comply with Itemized Employee Wage Statement Provisions (Labor Code § 226(a));
4) Failure to Pay Minimum Wage (Labor Code §§ 1182.12, 1197);
5) Failure to Pay Minimum Wage (Fair Labor Standards Act);
6) Violation of Labor Code § 2699; and
7) Unfair Competition in Violation of Business & Professions Code, § 17200, et. seq.
All of these claims are premised upon the employee’s right to be paid for the time spent at work.
California law defines the term “hours worked” as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” That does not mean that the mere fact that an employer required an employee to do something renders the time spent doing the activity at issue qualifies as “hours worked”. For example, the California Supreme Court has acknowledged that an employee’s commute is not compensable simply because “the employees would not commute to work unless the employer required their presence at the work site.” The level of the employer’s control over its employees, rather than the mere fact that the employer requires the employees’ activity, is determinative.
Generally, if you believe you may be owed any back compensation you may make a claim going back up to four years.
It is not difficult to request a free preliminary opinion that helps you understand your rights and if you should consider filing a claim for any unpaid wages.
Being informed could be worth tens of thousands of dollars in your pocket.
Labor law is complex; if you have experienced any of these scenarios or have any questions regarding your employment it is recommended that you contact a San Diego labor law attorney who can help you understand your rights and in many cases will review your situation without charge.
Photo Credit: Shutterstock/Vlad Teodor