The Legal Perils of Off-the-Clock Work
On-the-clock versus off-the-clock work can get blurry in our always-on society—and economy. It makes sense in industries where remote work is increasingly the norm, but for the restaurant industry there are also a number of unintentional (and often uncompensated) traps that can lead to hourly employees performing off-the-clock work. A recent California Supreme Court decision has set a precedent to require employers in California (and potentially across the country if other states follow suit) to compensate employees performing essential tasks after clocking out.
The federal Fair Labor Standard Act does not protect compensation for off-the-clock work that can be difficult to account for (under the de minimis doctrine). But the case in California, involving a Starbucks employee performing essential closing tasks after clocking out, was deemed by that state’s Supreme Court to not fall under the FLSA. Noting that a few minutes here or there can really add up, the California Supreme Court “rejected application of the de minimis doctrine where, as here, the employer ‘requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job.’”
It wouldn’t be surprising to see this legal interpretation take hold in other states. Similar suits in Minnesota and Colorado regarding Chipotle were settled out of court. Restaurant owners would be prudent to review their own business practices and put themselves in their employees’ places to avoid legal pitfalls.
What to Watch Out For
The occasional task or contact isn’t a major problem, but anything that could become a required and/or ongoing task should be addressed. And it isn’t just about activities after clocking out, but could include tasks prior to clocking in, or working during clocked-out breaks.
Some areas to keep an eye on:
- POS: if your point-of-sale system is where employees clock in and clock out, but then they have to shut down the system, that un-clocked time may warrant compensation.
- Contact: regularly calling or texting employees outside of work hours for work-related reasons (including scheduling) could also be an issue.
- On-Call Policies: if your requirements for on-call hourly employees are too restrictive, to the point that they can’t do anything else but be available for work, it is essentially the same as work (that should be compensated).
- Cancellations: in California, employees sent home early or because of a canceled shift must be compensated for 2 hours of work.
The best way to prevent legal peril is to hire and train excellent staff—particularly managers—who don’t ask employees to do off-the-clock work. Also keep communication channels open with employees to discover any pain points or policies that make off-the-clock work more common or even necessary. You can’t change what you’re not aware of, and uncovering issues helps you to make corrections.
Reducing off-the-clock work isn’t only for avoiding legal trouble, but for demonstrating care and respect for your employees who give their time for a reasonable wage. Best practices protect and support everyone.
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