Off-the-Clock Work
California requires pay for all time the employer controls, including short tasks performed before clocking in or after clocking out.
Employees must be paid for all time the employer controls, whether or not that time falls between a clock in and a clock out. Off the clock work is any task performed outside recorded hours, and in California it is compensable even when each individual occurrence is brief.
California Rejects the Federal De Minimis Rule
Federal courts have historically excused small amounts of unrecorded work under what is known as the de minimis doctrine. California does not follow that rule. In Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, the California Supreme Court held that an employer requiring employees to work minutes off the clock on a regular basis must find a way to compensate that time. The employee in that case performed roughly four to ten minutes of closing tasks after clocking out, and the court held that his claim could proceed.
Time Spent Under Employer Control
In Frlekin v. Apple Inc. (2020) 8 Cal.5th 1038, the court held that time spent waiting for and undergoing mandatory bag checks after clocking out is compensable, because the employer controlled the employee during that period. California applies a control test that reaches further than the federal standard, and there is no California equivalent of the federal Portal to Portal Act.
Case Results
Common Forms of Off-the-Clock Work
performed before clocking in or
after clocking out
and temperature checks
protective gear
during the workday
training outside scheduled hours
messages after hours
scheduling at home
under conditions that restrict
personal activity
Advance approval is not required for the time to be compensable. If the employer knew or should have known the work was happening, it must be paid. A policy prohibiting off the clock work does not relieve the employer of that obligation when supervisors allow or expect the practice to continue.
Why It Matters Beyond the Hours Themselves
Unpaid off the clock time can push an employee past eight hours in a day or 40 in a week, which converts unpaid minutes into unpaid overtime at time and a half or double time. It also produces inaccurate wage statements, because the hours reported do not match the hours actually worked, and it can leave unpaid wages outstanding at separation.
Proving the Hours
Employers are required to keep accurate time records. When those records are inadequate, courts allow employees to prove hours worked by a just and reasonable inference, and the burden then shifts to the employer to establish the actual time. Useful evidence includes personal notes and calendars, badge and access logs, phone and email timestamps, point of sale and alarm system records, dispatch logs, security footage, and testimony from coworkers who performed the same tasks.
Recovery
A claim may be filed with the Labor Commissioner’s Office or brought in court. Available recovery includes unpaid straight time and overtime, liquidated damages equal to unpaid minimum wages, interest, wage statement penalties, waiting time penalties where the employment has already ended, and attorneys’ fees and costs. The deadline is generally three years for statutory wage claims, extended to four years for claims brought under the Unfair Competition Law.
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