Off-The-Clock (OTC) Time Laws in California
Any time worked by employees performing tasks required by the employer, and for the benefit of the employer, is compensable time for which the employees must be paid – – either their regular ‘straight-time’ pay, or overtime pay when applicable, or at least minimum wages. When employees incur such time for which no pay is provided, this “off-the-clock” (or OTC) time typically violates both federal and state wage law. Such OTC time is usually incurred prior to the start of an employee’s scheduled, paid shift (pre-shift OTC time) or following the end of an employee’s scheduled, paid shift (post-shift OTC time).
Under CA wage law, such pre and post shift OTC time is compensable time whenever the employee is ‘under the control’ of the employer, is performing tasks which benefit the employer, and is not free to engage in their own personal pursuits when performing such tasks. Under the federal Fair Labor Standards Act (“FLSA”), pre or post shift OTC time is compensable whenever ‘suffered or permitted’ by the employer; meaning, whenever the employer knew or should have known the OTC tasks were being performed. If an employee secretly engages in pre or post shift tasks which the employer has no way of knowing about, such time is likely not compensable; however, if any pre or post shift OTC time is incurred by employees, and the employer knows or should have know about such time, because the time is spent complying with requirements set or expected by the employer, such time is compensable.
Examples of compensable OTC in various trades include restaurant servers required to prepare the area they will be serving prior to ‘clocking in’, law enforcement patrol employees required to prepare their patrol vehicles prior to the start of their paid shifts, and prison guards required to go through multiple security check points, submit to searches, check out keys and equipment, and walk significant distances inside prison walls to get to their assigned ‘posts’ prior to the start of their paid shifts.
If you are an employee OR an employer with specific questions regarding off-the-clock time under either CA wage law or under the federal FLSA, CONTACT a Goyette & Associates Labor Lawyer for a Free Consultation and Review.