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Off-The-Clock Wage Theft

By Josef Buenker on March 15, 2018

             One question we ask all prospective clients when we first interview them is whether they believe that they were paid for all the time spent working for their employer.  The answer is usually “yes,” but we often find that workers don’t always know when they should be paid for their time.

Off-the-Clock Wage Theft Can Be Obvious

             Sometimes off-the-clock claims are obvious: When an employer tells workers that they have to start working at 8 o’clock but don’t get clocked in until 8:30, the violation is pretty obvious – the employer is stealing 30 minutes of time from the employee each day.  Similarly, when a restaurant worker is told that she needs to clock out at 10:30 p.m. and return to work to finish cleaning the restaurant after closing, any time worked after 10:30 amounts to wage theft.  However, off-the-clock wage theft is not always so obvious.

Company Meetings

            Sometimes employees are told that they are required to attend meetings for various reasons, and sometimes these meetings are not held on company time – in other words, off-the-clock. Some examples of this practice that we have seen are:

  • A contractor at a chemical plant required its workers to gather for a safety meeting – also referred to as a “lunchbox meeting”- each morning at 6:45 a.m.  The workers were, however, not clocked in until 7 a.m.  The employer was stealing 15 minutes per day from each worker, which seems innocuous until you start calculating what over 100 employees earning $18-$25 per hour would earn at time-and-a-half during those meetings each week.
  • A contractor that installs gas meters for a utility company requires its employees to attend one-to-two-hour staff meeting every week or two, after hours and on their own time.  Again, these employees are high wage earners that regularly work over 40 hours per week.  The employer in this case is stealing from its employees each time it has those mandatory meetings.

If an employer requires its workers to attend a meeting outside of normal business hours, the employer is required to pay the employees for that time – it is considered compensable time because it is for the company’s benefit.

Meal Breaks

            We have seen a number of instances of wage theft related to meal breaks.  Sometimes employers automatically deduct time for meal breaks; sometimes employees can eat but also perform work during their meal period.  Some examples:

  • A delivery company that automatically deducts 30 minutes from its drivers’ time each day, even though the drivers rarely take a lunch, and most drivers usually eat something while driving to their next pick-up or delivery.
  • Law firm secretaries who eat at their desk while typing, answering the phone and performing other work.  This is a common occurrence in many office environments.
  • Numerous businesses where employees clock in when they arrive at work and don’t clock out for lunch, and the employer automatically deducts a certain amount of time for lunch whether the employee takes a lunch or as much time as is deducted or not.

An employer does not have to pay its employees for a meal break if the employee is actually taking a break from working – the employee must be totally relieved from all duties during the break.  If the employee is performing service for the employer, even just sitting at the receptionist’s desk and catching the phones, then the employer must pay for the break time.

Drive Time

            Many employers do not properly pay their employees for drive time.  Sometimes that drive time is at the beginning or end of the day and sometimes throughout the day.  Some examples of drive time wage theft are:

  • A home health service that only pays its caretakers for time actually spent at patients’ homes.  An example of this would be a nurse who spends an hour at each home and drives 15 minutes between appointments.  If the employer only pays the nurse for time spent with patients, then it is stealing all drive time between appointments from that worker.
  • Construction workers work at several different worksites during the day but are not paid for drive time between jobsites. They should be paid from the beginning of the workday to the end, except for actual breaks.

An employer must pay employees for all drive time that is for the benefit of the employer.  This does not include time spent commuting to and from work, but does generally include all driving during the work day.

            Employees should be aware of their right to be paid for all time spent working for the benefit of their employer.  If you have questions regarding whether your employer is paying you correctly, you should speak to an attorney knowledgeable in wage and hour matters.

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