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Can an Employer Clock You Out Without Your Knowledge?

Posted by Eric Kingsley | Mar 28, 2023 | 0 Comments

California labor laws state that employers cannot force their employees to work off the clock. All time you spend working must be accounted for and paid. You are required to be paid under the law even if your employer did not authorize extra time. If you worked and your employer knew about it or should have known about it, you must be paid. Sometimes, we hear of California employers who force their workers to arrive at work early but not clock in. In some cases, they may ask employees to stay late without clocking out. These actions are unlawful and violations of the labor code.

Your employer cannot clock you out without your knowledge. Employees who work off the clock can file a wage and hour lawsuit and seek compensation for unpaid wages. If the off-the-clock hours add up to more than 8 hours of work per day or over 40 hours per workweek, employers must pay time-and-a-half under California's overtime law.

Key Points - Table of Contents

What Does Working 'Off the Clock' Mean?

California employees who work off the clock are usually faced with one of two situations. In some cases, their employer might force them to work off the clock with overt or implied threats of punishment. In other cases, employees choose to work off the clock without formal authorization from their employer. Let us examine what each of these situations may mean to you under California wage and hour laws.

Forced Off-the-Clock Work

Can employers force you to work off the clock? Under California law, it is not legal for an employer to require an hourly or non-exempt California employee to perform off-the-clock work. If your employer deliberately violates the state's off-the-clock law, you can demand to get paid for all the hours you worked, which is your right under California's labor laws. There may be situations where employers unlawfully retaliate against employees for demanding that they be paid the wages they legally earned.

Our attorneys have seen cases where employers explicitly order employees to work off the clock including coming in earlier prior to a shift. Some employers saddle their workers with more assignments than they could possibly complete in an 8-hour workday. This forces employees to work off the clock to finish their assigned work or complete what is expected of them.

One more tactic employers use to circumvent California labor law is to misclassify workers as independent contractors. If contractors are given the same task as full-time employees and if the employer dictates their hours and location of work, that person should be classified as an hourly employee and not as an independent contractor. However, by doing so, employers are able to cut corner and avoid providing these workers with due wages and benefits such as healthcare, time off and sick pay. California law prohibits employers from misclassifying workers to get out of paying them the correct wages and benefits.

Voluntary Off-the-Clock Work

In some situations, employers attempt to ague that they don't have to pay their workers for off-the-clock work because the employee was not authorized to work additional hours. These employers try to say that if workers want to put in additional hours, that's their choice. However, that is not the law in California. According to labor laws, if the employer knows or should have known that the employee was working off the clock, but did nothing about it, the employer should pay for those additional hours of work.

Essentially, employers cannot argue that they will not pay overtime because they did not authorize it. If the employer required the worker to complete tasks that were impossible to finish in the allotted time, the employer may be required to pay overtime for the additional hours the employee spent completing the workload. The law states that the employer should have known that it was not possible for the worker to complete the task in the allotted time.  You can learn more about California overtime laws here.

What Steps Can You Take?

Here are some of the steps you can take if your employer forces you to work off the clock or clocked you out without your knowledge:

  • Inform your employer they are in violation of California labor law. Let your employer know you have the right to be paid for off-the-clock hours and demand payment. However, some employers may retaliate against their employees who exercise their rights even if such retaliation is unlawful.
  • File an employment lawsuit after you get a new job. This option is appealing to some because there is a lower risk of getting fired or otherwise retaliated against. You may still be able to claim your unpaid wages even after you have left that job.
  • You may also be able to sue right away. This means that your employer could retaliate against you for exercising your rights. An experienced California employment lawyer can advise you regarding the best step to take by taking into consideration your current situation.

Contacting an Unpaid Wages Lawyer

If your employer or supervisor has forced you to clock out of work before allowing you to leave work, or if they have clocked you out without your knowledge, please understand that it is against the law. You deserve to be paid the wages for which you worked, and the law also protects you against retaliation from your employer. When you understand your rights and the legal protections to which you are entitled, it can help you avoid falling victim to illegal labor practices such as wage theft. Call our experienced California unpaid wages lawyers at Kingsley & Kingsley Lawyers to obtain more information about pursuing your legal rights.

About the Author

Eric Kingsley

Eric B. Kingsley is a 2023 "Best In Law" Award winner and has litigated over 150 class actions. He is also an AV peer rated attorney and a prolific speaker at various seminars on employment law.


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