In California, you’re entitled to back wages if you do work before clocking in
Q: I work at a customer service company that deal with private information. To protect our clients’ privacy, we use a lot of technology to keep information safe. However, the use of these technology often requires us to spend approximately 5 to 15 minutes every day preparing for work. For example, we are not allowed to clock in until we have booted up our computers. And we have to shut down every time we leave our workstation for lunch. We are not paid for shortened breaks or the prep time before clock in. Is this right?
A: No, it is not. It sounds like you’re doing “off-the-clock” work. “Off-the-clock” hours are worked by employees before or after their regular scheduled hours, even if the employer has not directly required or authorized that the off-the-clock activities be performed. Off-the-clock hours may include coming to work early before the shift’s official starting time or continuing to work after one has clocked out for one’s official end time. It also includes work done during the employee’s mandated breaks.
Off-the-clock work may also include pre-shift or preparatory activities that employees do before they do their main tasks. For example, employees may spend time putting on a special uniform or gear before they clock in for work. Or employees may spend time on post-shift work such as cleaning equipment after their shift. Many employees in the healthcare industry work off-the-clock to complete their paperwork such as progress reports or patient charts. Some employees may take work home or are contacted at home by telephone for work-related reasons or are “called back” to work. All of these post-shift activities fall within hours worked and should be paid. Or, consider the following case of “advice nurses” who work at a call center:
Some call center-based nurses sued Permanente Medical Group, Inc., the medical group that staffs the Kaiser Permanente system, claiming that they were not paid for their off-the-clock work. The employees claimed that the employer’s timekeeping policy caused them to incur these unpaid off-the-clock work. Unpaid work included time they spent logging into software programs before their shifts (between 4 to 30 minutes). It also included several minutes logging out of the software programs and finishing phone calls at the end of their shifts. The nurses also claimed that the time they spent logging back into their computer systems interfered with their meal and rest periods resulting in them not being provided full and uninterrupted breaks.
Rather than proceed to trial, the parties agreed to settle the case, with the employer paying a total of $6.23 million in damages. Approximately 1,325 advice nurses will receive a share of the settlement monies calculated on their actual hours worked. The court approved the settlement.
In determining whether additional wages are due, employees should not be discouraged if the work performed was “off-the-clock” and not recorded. They should also not simply accept that they’re not entitled to additional wages just because the work performed was “voluntary,” “unauthorized” or “unapproved.” Work performed voluntarily, or without authorization or approval, may still be compensable if the employer knows or should know work is being done and permits the employee to do it.
If any of these off-the-clock activities caused the employees to work more than 8 hours per day, then California law requires that the employees be paid at the premium rate of 1 ½ times the employee’s regular rate if the employee worked more than 8 but less than 12 hours in a work day. If the employee worked more than 12 hours in a work day or in excess of 8 hours on the seventh day in a work week, the employee is entitled to double the employee’s regular rate.
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.com or 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 for 2016.]