Your Employees Logged Off. Their Overtime Clock Did Not.

The late-night Slack message. The quick call to an employee about a project after getting the kids to bed. The email fired off from the couch at 10 p.m. The quick fix handled over the weekend. For many employees, the workday never really ends. For non-exempt employees, this can be a wage and hour claim waiting to happen.

Under the federal Fair Labor Standards Act (FLSA), non-exempt employees must be paid for all hours “suffered or permitted to work,” even if you did not request or approve that work. That includes after-hours smartphone activity an employer knows about or reasonably should know about. Ignorance is not a defense.

The risk is real: unpaid wage and overtime claims, liquidated damages, and attorneys’ fees. Class and collective actions in this space are common and expensive.

What Should Employers Do?

• Start with an explicit, written off-the-clock policy that prohibits non-exempt employees from performing unauthorized after-hours work.
• Then train managers to enforce it, because a policy that supervisors ignore is useless.
• Consider whether company-issued devices need usage restrictions outside of business hours.
• Review your timekeeping systems to ensure they can capture and record after-hours activity.
• Audit your exempt classifications: employees misclassified as exempt must receive overtime and compensation for all hours worked, including time worked off-the-clock, which creates hidden liability. As we have stated before, misclassification costs a fortune.

State law adds another layer of complexity. Several states impose requirements that go beyond federal law, including stricter meal and rest break rules, daily overtime thresholds, and mandatory paystub disclosures tied to hours worked. What is compliant in one state may expose you to liability in another. Contact our office to ensure your practices are compliant wherever you operate.

Questions? We can help. We field workplace law questions all day, every day. We have fixed fee services to audit your workplace to reduce risk. Contact us.

Disclaimer: This content is for informational purposes only and does not constitute legal advice or create an attorney-client relationship. Employment laws vary significantly by state and circumstance. Please contact our office regarding your specific situation.