If You’re Non-Exempt, It’s Probably Illegal

Your boss keeps you late on the job—or asks you to work during your lunch break. You agree, expecting a nice bump in your paycheck. But when you get paid, it’s the same amount as always. What’s going on?

If you’re a non-exempt employee, it may be something illegal.

The Fair Labor Standards Act (FLSA) requires that non-exempt employees be paid overtime if they work more than 40 hours per week. If you’re being asked to work “off the clock”—or outside your regular workday—without being appropriately compensated, that may be against FLSA rules.

There are a few nuances to consider, though.

Exempt vs. Non-Exempt Employees

The FLSA overtime pay rules only apply to non-exempt employees, who are usually paid on an hourly basis.

Exempt employees—meaning those exempt from FLSA overtime rules—are salaried employees who get paid a set amount per year, regardless of the number of hours worked. When you’re exempt, there is no “off the clock” for FLSA purposes.

Exempt employees are supposed to be only executive, administrative, and professional workers in industries where commission-based contracts are the norm—as well as certain farm workers. But in practice, employers often find ways to categorize employees as exempt so they don’t have to pay overtime.

Off-The-Clock Work Rules

According to the FLSA, all non-exempt employees asked to work off the clock need to be paid overtime. That’s also true for employees who work extra hours without being asked, but with the employer’s approval.

There are many types of off-the-clock work, and it varies depending on your profession. Pre- and post-shift duties, answering phone calls or emails at home, or waiting to perform a task might all be considered off-the-clock duties that should be paid.

Many employees decide to come to work early to get a head start on things like answering emails or dealing with documentation—and that should also be considered paid, off-the-clock work.

Lunch Break Rules

The law on whether your employer is required to pay you for lunch and rest breaks can be a little convoluted.

Federal law doesn’t codify the right to take short breaks.  Some states do require employers to provide meal and rest breaks; in Pennsylvania, that’s true only for farm workers.

However, if you’re non-exempt, and your employer does provide such breaks (and most do), you have to be paid for them—if it’s a short break. The time you’re allowed for a paid break lasts from five to 20 minutes.

A longer break, during which you don’t have to do any work, can be unpaid. But, if your employer requires you to work during your break, they have to pay you for it—no matter the length of the break.

What If You Don’t Clock In?

Sometimes employees stay late or arrive early without clocking in. They might do it out of an altruistic desire to help the company, or because they feel coerced.

Either way, regardless of your intentions, your employer still has to pay you for that time under the FLSA, as long as you’re non-exempt.

Work With an Experienced Pennsylvania Employment Lawyer

Is your boss asking you to work off the clock without paying you? If so, they may be doing something illegal—and you may be entitled to damages and back pay.

If you’re not sure, schedule a free consultation with a knowledgeable Pennsylvania employment lawyer. We can help you assess the situation, determine the best strategy, and defend your interests in court.

Call us at 267-273-1054 or email us at murphy@phillyemploymentlawyer.com for a free, confidential consultation today.

The information provided here does not constitute legal advice. It is intended for general purposes only. If you have questions about a specific legal issue, you should speak to an attorney.