I hear complaints time and time again that new employees are being taken advantage of by their employers. In most cases, these millennial employees are convinced to believe they’re required to work off the clock. In most cases this is very illegal, and even though the Fair Labor Standards Act (FLSA) has been around for some time, these circumstances continue to go on.
Many new employees have no idea that the Department of Labor protects their hours of work. Even if an employee has heard of this law, they often let it slip due to fear of retaliation. Please know this is illegal and you cannot be taken advantage of.
WHO THE FLSA COVERS
This law does not cover exempt employees. Exempt employees are paid on a salary wage ( with certain requirements to be paid this way). Even if you are an exempt employee, your time is valuable. Click here to read more about exempt employment requirements. If you are not an exempt employee… you are likely covered!
Even if a company only has a few employees, they most likely still need to abide by FMLA. If the company you are working for is engaged interstate commerce, you are covered (this is most companies). If you are a domestic employee (such as a nanny), there are still requirements you fall under. This can include: making at $1700 per year and working at least 8 hours per week.
COMMON OFF THE CLOCK WORK
- Setting up for a project
- Arriving early or leaving late
- Answering calls and emails at home
- Staying at your desk during lunch
- Dropping off paperwork
- Waiting for tasks
The DOL requires that any activity intended to benefit the company must be paid.
Let’s say an employer requires you to clock out after working 40 hours, but you are still needed for additional tasks. They are required by law to keep you clocked in and pay you for the overtime worked.
When I worked at my first “grown up job” I did not know about this law. I was required to come in 15 minutes before my shift to set up and count the till for the day. In addition, I was also required to stay 15 minutes late to clean up. If I were clocked in during that time, they would modify our hours to only the scheduled shift times.
During the winter at this specific job, the floors of the salon would get insanely dirty with people tracking in salt from outside. At times, it would take up to 2 hours to clean up. Looking back, I unintentionally saved the company a ton of money by working off the clock.
For example, let’s say I worked off the clock for 30 minutes a day, 5 days a week, for an entire year at my $8 an hour wage position. That means that they would owe me a gross amount of $1040. Now multiply that by the 32 employees that worked there. YIKES! That amount is just under what I made as a manager.
Most of these 32 employees had never had a job before, even the managers. None of us really knew what to do in this situation. If we would have filed a claim with the Department of labor, they would have been required to do a 3 year look back and determine all lost wages. After that, the employer would have to pay all the missed wages right then and there. This could easily shut down a business.
I have also been on the receiving end of an audit. During my time as an HR Manager at a hotel our payroll company was not calculating the correct overtime and tipped wages. I had to go back 3 years and calculate on an excel spreadsheet all of the employee’s wages.
CHECK YOUR STATE LAW
In some cases, your state law might supersede the federal law. A few states have an overtime rule of 46 or 48. In this case, if your employer meets the requirements, the employees are to be covered by the federal FMLA rulings. If the employer does not meet the requirements, the state ruling will go into effect.
On the other hand, a few states (such as California) have stricter requirements for Overtime (OT). This may include OT per day. Since this ruling is in benefit of the employee, it supersedes Federal law.
I always suggest when moving to another state or even county check up on the State Employment laws.
WHAT CAN YOU DO?
Don’t be afraid to talk with your employer if you feel your hours are being mistreated. Chances are they assumed were clocking in or didn’t even know the laws themselves. If you are in a situation like mine where it is blatantly obvious that the employer is taking advantage of your time, then it is best to go direct to the Department of Labor.
You are protected when you go to the Department of Labor. They typically will initiate an audit of the whole company to start unless there’s specific issues with your time. The more employees you get to go with you and challenge the employer the better off you will be. This could be as simple as downloading the form online and sending it in an email or mail to the department of labor.
Just know what these employers are doing with your time, it’s not fair, and it’s saving the employers a lot of money that is not theirs. Be bold and brave because you don’t deserve to be treated that way.