Can My Employer Make Me Work Without Pay?

Can My Employer Make Me Work Without Pay?
5
min read
October 21, 2020

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 day—and, 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 job—and there are labor laws in place that ensure that you’re getting compensated fairly for your time.


But are there any circumstances where that standard definition doesn’t apply? Might you ever run into a situation where you’re forced to come into work—but your employer isn’t 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, let’s set your mind at ease from the get-go—there 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 worked—and 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 requirements—and, in that case, employers must comply with their state wage laws.


And just to clarify what “hours worked” actually means, according to the U.S. Department of Labor (DOL), “In general, ‘hours worked’ 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.”


So, in a nutshell, if your employer a) requires you to be at work, b) allows you to be at work, and c) you’re a non-exempt employee that’s protected by the FLSA, they’re required, by law, to compensate you for that time.

“Off the clock” hours—and why they’re illegal

So, employees that are covered under the FLSA legally can’t be required to work without pay—but that doesn’t mean that some employers don’t ask.


“Off the clock” is a blanket term that covers any hours you a) work outside of your regular shift, and b) don’t officially clock in for—and, as such, aren’t compensated for. For example, if a restaurant owner asks their waitstaff to come in early to set the tables—but doesn’t allow them to clock in until their scheduled shift starts—that would be working off the clock.


Some employers will either ask employees to put in hours off the clock—or, if they don’t flat-out ask, will hint that it’s expected if they want to succeed at the company or be considered a “team player.”


But if you’re a non-exempt employee, your employer can’t ask you to work “off the clock.” It’s completely illegal—and if you’ve 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 weren’t compensated for.

What happens if you volunteer to work extra hours?

So, if you’re a non-exempt employee, your employer can’t legally ask you to work hours without providing compensation. But what if you volunteer? For example, what if you’re almost done with a project and you want to get it done—so you voluntarily stay a few extra hours to wrap things up before heading home for the day?


It doesn’t matter. If your employer allows you to work, they’re legally required to compensate you for those work hours—so even if it’s 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 isn’t required to pay you for time worked

Pretty much every rule has at least one exception—and the rule that employers have to cover every employee’s 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 works—including overtime pay for any extra hours worked over 40 in a workweek.


But that same rule doesn’t always apply to salaried workers. Salaried employees are paid a steady salary every week, regardless of hours worked. And if they’re considered exempt employees (which the majority of salaried workers are), by definition, they’re exempt from overtime pay. So, it doesn’t matter how many hours of work they put in during a workweek—they 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 compensation—so, technically, they’d be working without (additional) pay.


If your employer isn’t paying you, seek legal advice

What should I do if I'm not getting paid for hours worked?

If you’re a non-exempt employee and your employer is asking, requiring, or allowing you to work without pay, it’s important to seek out legal advice from an employment attorney or a law firm specializing in wage and labor laws. You’re legally entitled to be compensated for every hour you work—and if you’re not, a lawyer can help you ensure that you’re getting the wages you’re entitled to every payday.


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