Should employees who ‘volunteer’ to work off-the-clock be paid?

Q:        I work as a nurse at a hospital that has a strict policy of no unapproved overtime, and no going on breaks unless we are relieved by another nurse. We are forced to skip our breaks if there is no reliever (which happens a lot because we are often understaffed). As for overtime, we don’t even ask for approval anymore since we risk being written up for “too much overtime.” We just clock out and go back to work to finish our charts. I recently complained to our supervisor but was told that if I “voluntarily” skip breaks or work off the clock, this is not the hospital’s problem. This seems unfair. Do we have remedies?

A:        Yes. You should be paid for the extra hours you worked even if they are “off the clock.” If these extra hours go beyond 8 hours per day, then you are entitled to the overtime rate of 1½ times your regular rate for any work in excess of 8 hours per day or two times your regular rate for any work beyond 12 hours per day. Also, you should be paid a one-hour premium for any missed lunch break, and another one hour-premium for any missed rest break.

A disturbing fact in your inquiry is that the employer considered your missed breaks and off-the-clock work “voluntary.” In California, there are clear laws for volunteers and what constitutes “voluntary work.” First of all, where there is an employment relationship between a worker and a company, that worker cannot be treated as an unpaid volunteer when performing her/his regular work for the employer during the employee’s work period.

In order to qualify as “volunteers” the persons must perform services for a civic, charitable, or humanitarian reasons, without promise, expectation, or receipt of compensation. Moreover, they must offer their services freely and without direct or indirect pressure or coercion. Finally, to qualify for volunteer services, the services must not be the same type of services the employee is employed to perform for the employer, and such volunteer work must take place outside the employee’s normal working hours.

California’s Court of Appeal clarified this issue about employees who “voluntarily” skip breaks or work off-the-clock:

Valerie Alberts and her fellow nursing staff at two acute care psychiatric hospitals owned and operated by Aurora Behavioral Health Care (the employer), filed a class action against their employer claiming unpaid wages. The employees claimed that the employer intentionally understaffed its hospitals but nevertheless required its nursing staff to remain at their posts and monitor patients unless relieved, resulting in employees being denied meal and rest breaks, which the employer failed to pay for as required by California law. The employer also required employees to complete assignments before leaving at the end of a shift, but discouraged or denied requests for overtime compensation and instructed employees to finish outstanding tasks off-the-clock.

The employer asked the court not to grant class action status to the case, citing one of its reasons as being that the employees “voluntarily” skipped their breaks or “voluntarily” worked off-the-clock. The Court of Appeal rejected the employer’s position, stating that a “voluntary” act is an act being “unconstrained by interference; not impelled by outside influence.” The employer has instituted policies that limit its employees’ freedom to take breaks, such as chronic understaffing, making patient safety the “number one priority,” having “zero tolerance” for staff who take a break without first being relieved, and the nurses’ code of ethics, which requires that a nurse’s “primary commitment” be to the patient. These policies exploit a reasonable nurse’s ethical obligations, making missed breaks mandatory, not voluntary.

The court further noted that even if there is evidence that some employees voluntarily worked uncompensated overtime, such a “choice” is not permitted under California law. A nonexempt employee (like the nursing staff in this case) may not lawfully volunteer to work off-the-clock without compensation.  The law requires payment for “all hours worked,” and overtime pay for “all hours worked” in excess of a 40-hour workweek.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.comor our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award.]