United States: Hear No Unreported Time, See No Unreported Time

Examining The Role Of Employer Policies In Off-The-Clock Claims

Some courts have read a safeguard into federal wage and hour law that can protect employers from liability for working-off-the-clock claims, believing you should not be responsible for unpaid overtime or minimum wage if you didn't know, and should not have known, that an employee was working off the clock. But what does it mean under the law whether an employer knew or should have known? And how is this analysis affected if you have a policy requiring employees to report all time worked, even if outside of normal work hours and while not clocked in? There is no single definitive answer, but several courts around the country provided valuable guidelines on how you might increase your chances of successfully defending against an-off-the-clock lawsuit.  

The Basics

The Fair Labor Standards Act (FLSA) requires that most non-exempt employees are compensated not less than the federal minimum wage (currently $7.25 an hour) for all hours worked, and at least 1 1/2 times their regular rate for any hours worked exceeding 40 in a workweek. So it follows that employers must keep accurate records of all hours worked by their employees. 

Assuming an employer keeps time records, an employee who claims they worked additional time that wasn't captured on the time records and for which they were not compensated bears the initial burden of proving they actually worked that time. If the employee presents evidence of time record inaccuracies about which the employer knew or should have known, and as a result the employee's pay didn't meet the FLSA requirements, the burden shifts to the employer to prove the employee didn't actually work additional time. This can be a very difficult task.

What Leads To An Off-The-Clock Claim?

Typically, off-the-clock claims arise when an employer keeps what it believes are accurate time records but an employee alleges they actually worked more – often much more – than what is reflected. Some of the more common situations where the question of whether the employer knew or should have known of this purported off-the-clock time include when an employee works through lunch and the employer has an automatic deduction for lunchtime; supervisors directing or allowing employees to work prior to clocking in or after clocking out; waiting for a computer to boot up to clock in for the day; donning and doffing uniforms; and short unpaid rest breaks.

When Is An Employer Expected To Know That Time Was Worked?

At what point does an employer become potentially liable for an employee's time worked off the clock due to its knowledge, whether actual or constructive, of the time in question? Although it really depends upon each case, several courts have recently contemplated what circumstances can justify such a claim. Often these cases also address an employer's policy requiring employees to accurately report all time worked off the clock, and whether that changes the court's analysis. 

Let's use an example where a company automatically deducts one hour from its non-exempt employees' time records each day for a presumed lunch break. First, a company must have a well-crafted policy that directs employees to accurately report all time worked, and to report to the company if directed by a supervisor to work off the clock without reporting the time or if their time is improperly adjusted without their knowledge and assent. Assuming such a policy is in place, some courts have embraced the idea that it can cause the burden to shift to the employee to explain how unpaid time can be reconciled with the policy.

In these situations, several courts have stated that the relevant inquiry is not whether the employer knew the employee was working, but instead whether the employer knew the employee was not paid according to the FLSA requirement for that work. Therefore, if an employer establishes a reasonable process for employees to report uncompensated work time, the employer may argue that it is not liable for non-payment when an employee fails to follow the established process.

Of course, not all courts have adopted this approach, and several have been outright hostile to it. Even the courts to embrace a burden-shifting approach have held the principle has reasonable boundaries. A review of more than a dozen cases applying this principle suggests the outcome generally turns on how reasonably the parties acted in the situation. 

When an employee fails to report that they worked through lunch in contravention of an employer policy, and no other circumstances are present, the employer can arguably avoid liability. But if an employer's acts or omissions led to the underreported time, it typically loses. For example, if an employee alleges their supervisor directed them to clock out but continue working, it is virtually certain a court would not allow the employer to rely upon its written policy to escape a resulting FLSA claim.  

Off-The-Clock Claims: A Litigation Wish List

There is no way to guarantee a successful defense to an off-the-clock claim because, due to its very nature, there is no surefire way to keep an accurate record of alleged "unreported" time. But the chances for a successful defense are increased substantially when you take the following steps:

  • Keep accurate records of time worked.
  • Develop, explain, and rigorously enforce a well-written policy requiring employees to accurately report all time worked and expressly prohibiting unreported work.
  • Train your managers on FLSA requirements, any applicable state or local wage laws, and company policies regarding proper timekeeping.
  • Develop a system that allows employees to keep accurate worktime records even when not in the workplace.
  • Discharge or, at a minimum, strongly discipline any manager who requires or permits employees to work off the clock, unilaterally decreases an employee's worktime without concurrence by the employee, or fails to ensure non-exempt subordinates follow a well-crafted company policy requiring them to accurately record all time worked.

Finally, if you get sued for an off-the-clock claim, think about all of the sources of information that can be used to establish or recreate the time an employee worked, or to otherwise impeach the employee's testimony that they worked "80 hours a week, every week." To stay a step ahead, we recommend you spend some time now reviewing your processes to ensure you are able to retrieve, analyze, and reproduce the following: computer log-in and log-out records; reports that show the timestamp of the first and last emails sent each day; video or surveillance footage of workplace entrances and exits; company telephone logs; GPS logs of company-controlled and owned vehicles; time records of other employees in the same or similar positions; time records of exempt individuals; and company-issued cell phone and text message records between employees and others.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions