My husband works for a restaurant in the kitchen. It seems to be common for some employees to work off the clock and in doing so my husband often doesn't receive as many hours on the schedule as others because these others may be scheduled for 6 hours and only work 3 on the clock. My husband has recently been told at the end of the night to clock out and keep working (staying clocked in wouldn't have resulted in overtime) and when he refused he was threatened with being written up or fired. He told them he would clock out when asked but would go home and would not work off the clock. Aside from not wanting to work for free he is also worried about what would happen if injury would be caused to a person or damage to the property or a plethora of other what ifs that he could be held responsible for by being in the kitchen when he had no business to be because he was clocked out so technically not working etc etc. Is it legal to make an employee work off the clock with no compensation? We're not seeking to sue or do anything crazy like that....we just want to know what is legal and what his rights are. Thank you
No one can "make" your husband work as slavery was abolished in the U.S. Under both state and federal law, an employer must pay an employee for hours worked. It is against the law for an employer to knowingly allow an employee to work without compensation. It is also against the law to avoid paying overtime to a nonexempt employee like your husband.
In addition to the numerous wage and hour claims the employees have for working without compensation and overtime, your husband has a potential discrimination claim and could have a wrongful termination claim if the employer retaliates against him.
I think your husband would benefit from speaking with a lawyer. Have him call a lawyer and ask for a free consultation.
Eric A. Shore
Please understand that I do not represent you until we both sign a retainer agreement and that the information I provide here should not be considered legal advice. It is for informational purposes only. I am licensed in PA and NJ and handle employment discrimination, wrongful termination, sexual harassment, social security disability, workers' compensation, civil rights and personal injury cases. I never charge a fee unless I am retained and help my client win.
No, its not legal. One cannot require people to work for free under the Wage Payment and Collection Law. However, just because its illegal to force people to work for free does not make it a less awkward situation for your husband. Particularly where jobs are scarce, the truth is one has to use good judgment as to how to handle the situation. I would as a lawyer advise my clients on a case by case basis whether and when to pursue.
This answer is informational only and is not meant to constitute an attorney-client relationship.
of course it's illegal. I would not be too concerned about the injury issue because if the timeclock is not a good indicator of whether employees are working, then it would not be a useful defense for the employer to avoid liability. I would encourage your husband to keep a record of his "real" hours in the event that he is able to find work elsewhere, because he can sue for those hours (or get the department of labor to help him) once he leaves.
No, it is not legal. If he was injured, as long as he could prove that it happened while at work, he would be covered by worker's compensation.
The other issue is what his recourse might be if he were terminated for refusing to work off the books. I think you should speak with an employment attorney in your area to see how to protect his job and rights.
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