At the core, a job is an exchange. When you work at small businesses (or large businesses, for that matter), you give your employers your time and energy when you tackle your job duties each dayâand, in exchange, they compensate you for the total number of hours you work; so, if you work 40 hours, you expect to get paid your standard pay rate to cover those hours.
Exchanging compensation for hours worked is the basic definition of a jobâand there are labor laws in place that ensure that youâre getting compensated fairly for your time.
But are there any circumstances where that standard definition doesnât apply? Might you ever run into a situation where youâre forced to come into workâbut your employer isnât forced to compensate you for those work hours?
Or, in other words, are there any situations where your employer can make you work without pay?
The Fair Labor Standards Act and how it protects employees
So, letâs set your mind at ease from the get-goâthere are federal laws in place that protect workers, prevent employers from exploiting or taking advantage of their workforce, and ensure you get paid for the time you put in at your job.
Under the Fair Labor Standards Act (FLSA), non-exempt employees must be paid at least the federal minimum wage for all hours workedâand if they work more than 40 hours per week, employers are required to pay them at least one-and-a-half times their regular rate of pay.
Some state laws dictate higher minimum wage rate requirementsâand, in that case, employers must comply with their state wage laws.
And just to clarify what âhours workedâ actually means, according to the U.S. Department of Labor (DOL), âIn general, âhours workedâ includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work. Also included is any additional time the employee is allowed (i.e., suffered or permitted) to work.â
So, in a nutshell, if your employer a) requires you to be at work, b) allows you to be at work, and c) youâre a non-exempt employee thatâs protected by the FLSA, theyâre required, by law, to compensate you for that time.
âOff the clockâ hoursâand why theyâre illegal
So, employees that are covered under the FLSA legally canât be required to work without payâbut that doesnât mean that some employers donât ask.
âOff the clockâ is a blanket term that covers any hours you a) work outside of your regular shift, and b) donât officially clock in forâand, as such, arenât compensated for. For example, if a restaurant owner asks their waitstaff to come in early to set the tablesâbut doesnât allow them to clock in until their scheduled shift startsâthat would be working off the clock.
Some employers will either ask employees to put in hours off the clockâor, if they donât flat-out ask, will hint that itâs expected if they want to succeed at the company or be considered a âteam player.â
But if youâre a non-exempt employee, your employer canât ask you to work âoff the clock.â Itâs completely illegalâand if youâve worked off the clock hours, you can file a complaint with the Department of Labor and may be able to recover back wages and collect back pay for any hours you worked that you werenât compensated for.
What happens if you volunteer to work extra hours?
So, if youâre a non-exempt employee, your employer canât legally ask you to work hours without providing compensation. But what if you volunteer? For example, what if youâre almost done with a project and you want to get it doneâso you voluntarily stay a few extra hours to wrap things up before heading home for the day?
It doesnât matter. If your employer allows you to work, theyâre legally required to compensate you for those work hoursâso even if itâs your idea to come in early or put in a few hours on your day off, your employer is still legally required to compensate you for that work time.
When your employer isnât required to pay you for time worked
Pretty much every rule has at least one exceptionâand the rule that employers have to cover every employeeâs pay for every hour worked is no different.
The biggest discrepancy comes down to how an employee is classified. As mentioned, under the FLSA, non-exempt or hourly employees are entitled to compensation for every hour the employee worksâincluding overtime pay for any extra hours worked over 40 in a workweek.
But that same rule doesnât always apply to salaried workers. Salaried employees are paid a steady salary every week, regardless of hours worked. And if theyâre considered exempt employees (which the majority of salaried workers are), by definition, theyâre exempt from overtime pay. So, it doesnât matter how many hours of work they put in during a workweekâthey can work 38 hours, 40 hours, or 51 hours and their pay stays the same.
So, if an employer has an exempt employee and they need them to work extra hours, based on their exempt status, they can ask them to put in those extra hours without providing additional compensationâso, technically, theyâd be working without (additional) pay.
If your employer isnât paying you, seek legal advice
What should IÂ do if I'm not getting paid for hours worked?
If youâre a non-exempt employee and your employer is asking, requiring, or allowing you to work without pay, itâs important to seek out legal advice from an employment attorney or a law firm specializing in wage and labor laws. Youâre legally entitled to be compensated for every hour you workâand if youâre not, a lawyer can help you ensure that youâre getting the wages youâre entitled to every payday.