Disclaimer: This article is for educational purposes only and is not tax, legal, or financial advice. Tax rules can change; always check current IRS guidance or consult a qualified tax professional.
Hours44: Time Clock & Tracker
Quick Answer: Is Working Off the Clock Illegal?
Yes. Under the Fair Labor Standards Act (FLSA), your employer must pay you for all hours you work. If you're a non-exempt (hourly) employee, any task you do for your employer's benefit is compensable work time, whether they asked you to do it or not.
The legal standard is called "suffer or permit to work": if your employer knows or should know you're working, they owe you wages for that time. Pre-shift setup, post-shift cleanup, answering emails after hours, working through unpaid breaks -- all of it counts.
Wage theft from off-the-clock work costs U.S. workers an estimated $50 billion per year.
Key Takeaways
- All work must be paid. If you're non-exempt, your employer owes you for every minute you spend on work tasks. No exceptions.
- "Voluntary" doesn't matter. Even if you choose to stay late or come in early without being asked, your employer still has to pay you. They can't accept free labor.
- Your own records count as evidence. Courts and the DOL accept personal time-tracking records when employer records are missing or falsified.
- You can recover double your unpaid wages. The FLSA allows liquidated damages that double the back pay you're owed, plus attorney fees.
- Retaliation is illegal too. Your employer can't fire, demote, or punish you for reporting off-the-clock violations or filing a wage complaint.
What Is Working Off the Clock?
Working off the clock means doing job duties without being paid. For non-exempt (hourly) employees, this violates the Fair Labor Standards Act.
The FLSA uses a specific legal test: the "suffer or permit to work" standard, defined in 29 U.S.C. 203(g). If your employer knows you're working, or reasonably should know, they must pay you. Doesn't matter whether they told you to work. Doesn't matter whether you volunteered.
Who does this apply to?
Every non-exempt employee in the United States. "Non-exempt" typically means hourly workers, though some salaried workers qualify too. If you get overtime pay when you work more than 40 hours in a week, you're almost certainly non-exempt, and every hour of your work time must be compensated.
The "voluntary" myth
This trips people up: you can't waive your right to be paid. Some employers tell workers that if they "choose" to come in early or stay late, it doesn't count as work time. That's wrong. Under federal law, an employer can't accept the benefit of your work without paying for it. If you're doing tasks that benefit your employer, they owe you wages. It doesn't matter who started the work.
Common Examples of Off-the-Clock Work
Off-the-clock work takes a lot of forms. Some are obvious. Others fly under the radar until you add them up.
Before your shift
- Arriving early to set up your workstation, boot computers, or prep equipment
- Putting on required safety gear, uniforms, or protective clothing before clocking in
- Attending pre-shift meetings, briefings, or huddles
- Reading emails or messages about the day's tasks before your paid time starts
After your shift
- Cleaning up your work area, closing out registers, or locking up the building
- Completing paperwork, incident reports, or end-of-day logs after clocking out
- Finishing a customer interaction that started before your shift ended
- Walking a long distance from your work area to the time clock
During unpaid breaks
- Answering work calls, texts, or emails during your lunch break
- Monitoring equipment, phones, or a front desk while "on break"
- Being told to stay on-site and available during your unpaid meal period
After hours
- Responding to work emails, Slack messages, or texts from home
- Completing mandatory online training on your personal time
- Reviewing schedules, policy documents, or memos outside work hours
Administrative tasks
- Correcting your own timesheets or filling out expense reports off the clock
- Traveling between job sites during the workday without pay
- Waiting for assignments or equipment when your employer controls when you can leave
Those small unpaid increments add up fast. Fifteen minutes of unpaid pre-shift setup, five days a week, equals 65 hours per year. At $18/hour, that's $1,170 in stolen wages from one worker in one year.
Why Working Off the Clock Is Illegal
The FLSA requires employers to pay at least minimum wage for all hours worked and overtime (1.5x the regular rate) for hours over 40 in a workweek. Off-the-clock work breaks both rules.
The suffer or permit doctrine
Under the FLSA, "employ" includes to "suffer or permit to work." If your employer benefits from your work, they have to pay for it. The Department of Labor's regulations at 29 CFR Part 785 are explicit: work not requested but "suffered or permitted" is still work time.
The de minimis exception (and its limits)
Courts have recognized a narrow exception for truly trivial amounts of time, roughly a minute or less, that are administratively difficult to track. But this exception is shrinking. Federal courts have started ruling that modern time-tracking technology makes it practical to capture even small increments, so the "too hard to track" argument doesn't hold up like it used to.
State laws add more protection
Many states go further than federal law. California imposes penalties of $50 to $100 per employee per pay period under Labor Code 558 for wage and hour violations, with additional penalties available through the Private Attorneys General Act (PAGA). New York, Illinois, and other states have their own wage theft statutes with extra penalties and longer statutes of limitations.
What you can recover
- Back pay: All unpaid wages going back 2 years (3 years if the violation was willful)
- Liquidated damages: An additional amount equal to your back pay, which doubles what you're owed
- Attorney fees: Your employer pays your legal costs if you win
- State penalties: Additional fines depending on your state's laws
These cases aren't theoretical. The DOL's Wage and Hour Division recovered more than $200 million in unpaid wages for workers in fiscal year 2024 alone. Between 2021 and 2023, federal, state, and private enforcement actions recovered more than $1.5 billion in stolen wages for workers nationwide.
How to Document Off-the-Clock Work
If you ever need to file a wage complaint or lawsuit, your personal records are what your case is built on. Courts routinely accept employee time logs when employer records are incomplete or missing.
Why personal records matter
The DOL has only about 611 investigators covering 165 million workers. When they investigate, they need evidence. If your employer's timekeeping system only shows your scheduled hours (not your actual hours), your own records fill the gap. Federal courts can award damages based on an employee's reasonable reconstruction of hours worked, even without employer records to back it up.
What to record
For every day you work off the clock, write down:
- Date
- Actual start and stop times (when you started working, not when you clocked in)
- Tasks performed during unpaid time
- Who directed the work (supervisor name, if applicable)
- Duration of unpaid work in minutes
Use a time-tracking app
Handwritten notes work, but a time-tracking app is stronger evidence. An app like Hours44 creates timestamped records on your phone showing exactly when you started and stopped working each day. These records are harder to dispute than handwritten notes because they're created in real time with automatic timestamps.
Track your actual work time, including the unpaid portions. At the end of each week, compare your app's records against your pay stub. Any gap between hours tracked and hours paid is the off-the-clock work you can document.
Save supporting evidence
- Pay stubs: Download or photograph every pay stub. Compare paid hours against your actual hours.
- Text messages and emails: Screenshot any communication from a manager asking you to work before clocking in, stay late after clocking out, or handle tasks during breaks.
- Schedules: Keep copies of posted schedules that show expected arrival times before the official clock-in time.
- Witness information: Note the names of coworkers who also work off the clock. They may be willing to back up your account.
How to Report Unpaid Work to the Department of Labor
You have two main paths: file a complaint with the Department of Labor, or pursue a private lawsuit. Here's how the DOL route works.
Step 1: Contact the Wage and Hour Division
Call 1-866-487-9243 (1-866-4US-WAGE) or visit dol.gov/agencies/whd/contact/complaints to file online. You can also walk into a local WHD office. You don't need a lawyer to file.
Step 2: Provide your documentation
Bring or submit:
- Your name, address, and contact information
- Your employer's name and address
- Your job title and description of work
- Your pay rate and how you were paid (hourly, weekly, etc.)
- Your personal time records showing hours worked vs. hours paid
- Pay stubs showing the discrepancy
- Any written evidence of off-the-clock work requests
Step 3: The investigation
If the WHD takes your case, an investigator will contact your employer, review payroll records, interview employees, and compare the employer's records against your evidence. The investigation is confidential. The WHD does not reveal who filed the complaint.
Step 4: Resolution
If violations are confirmed, the WHD can:
- Order your employer to pay back wages
- Assess liquidated damages (double your unpaid wages)
- Refer the case for litigation if the employer refuses to comply
Alternative options
- Private lawsuit: You can sue your employer directly under the FLSA. An employment attorney can tell you whether a private suit or class action makes more sense for your situation.
- State labor agency: Many states have their own wage enforcement agencies with faster processing times and penalties beyond what federal law offers.
One thing to keep in mind: you have 2 years from the violation to file a federal claim (3 years if the violation was willful). Don't sit on it.
Retaliation Is Also Illegal
A lot of workers stay quiet about off-the-clock violations because they're afraid of losing their job. Federal law addresses that directly.
What the FLSA protects
Section 15(a)(3) of the FLSA makes it illegal for an employer to retaliate against any employee who:
- Files a wage complaint with the DOL or in court
- Cooperates with a WHD investigation
- Testifies in a proceeding related to wage violations
- Raises concerns about unpaid wages to a supervisor (even informally)
The DOL's Fact Sheet 77A covers these protections in detail.
What counts as retaliation
It's not just firing. Retaliation includes:
- Termination or forced resignation
- Demotion or reassignment to less desirable work
- Cutting your hours or changing your schedule
- Threats, intimidation, or harassment
- Negative performance reviews tied to your complaint
What you can recover for retaliation
If your employer retaliates, you can pursue:
- Reinstatement to your former position
- Lost wages from the date of retaliation
- Liquidated damages equal to your lost wages (doubling the amount)
- Attorney fees and court costs
Retaliation penalties are steep, and most employment attorneys consider these cases strong. If you can show a clear timeline -- complaint filed, adverse action taken shortly after -- the burden shifts to your employer to prove the action was unrelated to your complaint.
Off-the-Clock Work: Real-World Scenarios
Here's what off-the-clock violations look like in dollars. All amounts assume 50 working weeks per year.
- Hourly rate: $16/hour
- Unpaid task: Required to arrive 20 minutes early to set up displays and turn on registers before clocking in
- Frequency: 5 days/week, 50 weeks/year
- Unpaid hours per year: 20 min x 250 days = 83.3 hours
- Unpaid wages: 83.3 x $16 = $1,333/year
- With liquidated damages: $2,666
- Over 3 years (willful): $7,998
Twenty minutes a day doesn't feel like much. Over three years, it's nearly $8,000 in stolen wages -- and that's before factoring in overtime. If those extra 83 hours push total weekly hours above 40, the unpaid amount is even higher at the overtime rate.
- Hourly rate: $14/hour (state minimum wage applies; sidework is non-tipped)
- Unpaid task: Manager clocks servers out at the end of shift but requires 30 minutes of cleaning, rolling silverware, and restocking before they can leave
- Frequency: 5 shifts/week, 50 weeks/year
- Unpaid hours per year: 30 min x 250 shifts = 125 hours
- Unpaid wages: 125 x $14 = $1,750/year
- With liquidated damages: $3,500
This is a common pattern in restaurants. The manager controls the time clock and clocks workers out before the work is actually done. A time-tracking app running on the server's phone would capture the real departure time and create a clear record of the gap between clock-out and when they actually left.
- Hourly rate: $22/hour
- Unpaid tasks: Required to attend a 15-minute unpaid team meeting before each shift, plus spends ~20 minutes/day answering group chat messages about scheduling and task assignments from home
- Frequency: 5 days/week, 50 weeks/year
- Unpaid hours per year: 35 min x 250 days = 145.8 hours
- Unpaid wages: 145.8 x $22 = $3,208/year
- With liquidated damages: $6,416
The after-hours messaging piece is getting more common as employers use group chats to coordinate work. If you have to read and respond to work messages on your own time, that's compensable work under the FLSA.
Frequently Asked Questions
Practical Tips
- Start tracking your actual hours today. Use a time-tracking app like Hours44 to record when you really start and stop working, not just when you clock in and out. The sooner you start, the more documentation you'll have if you need it.
- Compare your records to your pay stubs every week. Look for gaps between the hours you tracked and the hours you were paid. Even a 10-minute daily gap adds up to over 40 hours per year.
- Save all work-related messages. Screenshot texts, emails, or chat messages from managers that ask you to arrive early, stay late, or handle tasks outside your scheduled hours. Those are direct evidence of off-the-clock work requests.
- Know your state's laws. California, New York, Illinois, and other states have wage theft protections that go beyond the FLSA. Your state labor agency may process complaints faster and impose additional penalties.
- Don't assume small amounts don't count. Fifteen minutes a day, five days a week, is more than 60 hours per year of unpaid labor. Federal courts are rejecting the de minimis defense for these increments more often than they used to.
- Talk to coworkers. If your employer requires off-the-clock work from multiple employees, a group complaint or class action carries more weight and spreads legal costs across participants.
References
- U.S. Department of Labor: Off-the-Clock Work Under the FLSA — Official DOL guidance on off-the-clock work requirements and employer obligations.
- DOL Wage and Hour Division: How to File a Complaint — Instructions for filing a wage complaint with the Department of Labor, including phone, online, and in-person options.
- DOL Fact Sheet 77A: Prohibiting Retaliation Under the FLSA — Official DOL fact sheet on anti-retaliation protections for employees who report wage violations.
- 29 CFR Part 785: Hours Worked Under the FLSA — Full text of the federal regulation defining compensable work time, including the suffer-or-permit standard.
- Economic Policy Institute: Employers Steal Billions from Workers' Paychecks Each Year — Research report on the scale of wage theft in the U.S., estimating $50 billion in annual losses to workers.
- 29 U.S.C. 255: Statute of Limitations for FLSA Claims — Federal statute establishing the 2-year (standard) and 3-year (willful) limitations period for wage claims.