My Employer Won’t Pay Me for Work Before or After My Shift—What Can I Do?
Your shift starts at 9:00 a.m., but your manager expects you to arrive at 8:45 to prepare for the day.
Or your shift ends at 5:00 p.m., but you regularly spend another 20 minutes closing the workplace, finishing paperwork, responding to messages, or completing other required tasks.
Your employer only pays you for your scheduled shift.
Do you have to be paid for work you perform before or after your scheduled hours?
The answer is frequently, yes.
Federal and New York wage laws require covered employees be paid for the time they actually work, even if it is more than their scheduled time.
Scheduled Hours Are Not Necessarily the Same as Hours Worked
An employer may establish a work schedule, but that schedule does not determine how many hours an employee actually worked. Pre- and post-shift work is still work and you deserve to be paid for it. If you routinely arrive 15 minutes early to open the workplace, for example, your employer usually must paying for this extra time. The same principle can apply after a scheduled shift ends. An employee who is required or permitted to continue performing compensable work may be entitled to payment for that time.
What Types of Pre-Shift and Post-Shift Work May Be Compensable?
Whether a particular activity constitutes compensable work depends on the circumstances. Common issues include employees being required to:
- Open or close a workplace;
- Prepare a workstation before clocking in;
- Set up equipment;
- Perform required cleaning;
- Complete paperwork after clocking out;
- Finish customer or client work;
- Attend required pre-shift meetings;
- Perform required security or closing procedures;
- Respond to work-related calls, texts, or emails outside scheduled hours; or
- Complete other required job duties before or after a scheduled shift.
An employer generally cannot make otherwise compensable work unpaid simply by labeling it “pre-shift” or “post-shift.”
What If My Manager Tells Me Not to Record the Extra Time?
This can present a significant wage-and-hour issue.
Employees sometimes receive instructions such as:
“Don’t clock in until your scheduled start time.”
“Clock out now and finish cleaning.”
“You’re already at 40 hours, so don’t put any more time on your timesheet.”
“Management doesn’t approve overtime.”
An employer’s timekeeping or overtime policy does not eliminate its obligation to pay for your work..
What If My Employer Says the Extra Work Wasn’t Authorized?
An employer may establish rules requiring employees to obtain authorization before working overtime. But disciplining an employee for violating an overtime policy is different from refusing to pay the employee for compensable time that was actually worked.
A key issue can be whether the employer knew or had reason to know that the employee was performing the work.
For example, suppose a supervisor watches employees continue closing a restaurant for 30 minutes after they clock out every night. The employer may have difficulty simply claiming that it never “authorized” the work.
The facts matter.
Questions may include:
- Did a supervisor assign the work?
- Was the work necessary to complete the employee’s job?
- Did management know employees were working after clocking out?
- Was the practice occurring regularly?
- Did supervisors instruct employees not to record the time?
- Could the employer see when the work was actually being performed?
What If It’s Only 10 or 15 Minutes?
Small amounts of unpaid time can become substantial when the practice happens repeatedly.
For example, 15 minutes of unpaid work per day, five days per week, for 50 weeks equals 62.5 hours of unpaid time.
If those additional hours also cause an employee’s compensable working time to exceed 40 hours in a workweek, overtime requirements may come into play.
Employees should therefore not assume that regularly working “just a few minutes” before or after a shift is legally insignificant.
What If the Extra Time Puts Me Over 40 Hours?
For many non-exempt employees, hours worked in excess of 40 hours per week must be paid at the applicable overtime rate.
Consider an employee whose timecard shows exactly 40 hours.
If that employee actually performs 20 minutes of compensable pre-shift work every day, the employee may have worked more than 40 hours during the week even though the employer’s records do not show it.
An employer generally cannot avoid an otherwise applicable overtime obligation by failing to record compensable working time.
What Evidence Should I Keep?
Off-the-clock cases frequently involve disagreements about how much time an employee actually worked.
Employees who believe they are performing unpaid work should consider preserving relevant evidence while they still have access to it.
Time Records
Save copies or screenshots of your timecards when permitted.
Schedules
Keep schedules showing when the employer officially expected you to begin and end work.
Paystubs
Preserve paystubs showing the hours and wages for which you were actually paid.
Emails and Text Messages
Communications can help establish that work occurred outside scheduled hours.
For example, a supervisor sending assignments before an employee clocks in or instructing the employee to complete closing tasks after clocking out may be relevant.
Your Own Record of Hours
Consider maintaining a contemporaneous record of when you actually begin and stop working.
A calendar, spreadsheet, notebook, or similar record can help document recurring unpaid time.
Employees should not improperly access confidential company information or take records they are not entitled to possess.
Should I Complain About Unpaid Off-the-Clock Work?
Employees may have legal protections when they complain about violations of wage-and-hour laws.
The appropriate way to raise a wage issue depends on the circumstances. If you do make a complaint, consider preserving a copy of what you submitted and any response you receive.
If an employer punishes an employee because the employee asserted legally protected wage rights, that may potentially raise a separate retaliation issue.
What Can I Do If My Employer Won’t Pay Me?
If you believe you are regularly performing uncompensated work before or after your shift, consider:
- Documenting your actual hours. Keep a contemporaneous record of when you begin and stop working.
- Preserving your timecards and schedules. Do this while you still have lawful access to them.
- Keeping relevant communications. Preserve messages showing when supervisors assigned or knew about the work.
- Reviewing your paystubs. Compare the hours for which you were paid with the hours you actually worked.
- Considering legal advice. Wage-and-hour claims can involve questions about whether particular activities are compensable, whether the employee is entitled to overtime, and what evidence is available to establish the unpaid working time.
Speak With a New York Wage-and-Hour Attorney
If your employer requires you to work before clocking in, after clocking out, or otherwise outside your paid hours, you may be entitled to unpaid wages or overtime.
Naidich Law represents employees in Brooklyn and throughout New York City in wage-and-hour matters, including unpaid wages, overtime, off-the-clock work, and inaccurate time records.
[Request a Free Consultation]
This article provides general information only and is not legal advice. Whether particular working time is compensable depends on the applicable law and specific circumstances. Reading this article or contacting Naidich Law does not, by itself, create an attorney-client relationship.