"Can you just look at this real quick?"
"Quick question about tomorrow's meeting."
"Hey, saw your email—can you clarify?"
These messages feel innocent. Managers send them without thinking twice. Employees answer them because they want to be responsive, helpful, or simply avoid tomorrow's fire drill.
But under federal and New York wage and hour law, every one of these interactions might be compensable work time—meaning you owe wages, and potentially overtime, for each occurrence.
The problem isn't the message. It's the systemic failure to track, recognize, and pay for work that happens outside the time clock. And when this pattern repeats across your workforce—dozens of texts, hundreds of emails, weekend Slack threads—you're building a wage and hour liability that could cost six or seven figures once the lawsuits start rolling in.
Off-the-clock work isn't just about hourly employees clocking out and then cleaning up. It includes:
Answering work emails from home
Responding to manager texts after hours
Joining "quick" Zoom calls on days off
Reviewing documents on weekends
Participating in group chats during non-work hours
Even salaried non-exempt employees who work unapproved overtime are entitled to be paid for it—whether or not you authorized the work. And if your policies don't clearly prohibit after-hours work, or if your managers regularly expect it, you're practically inviting a wage claim.
The kicker? Even if you have a policy against unauthorized overtime, failing to enforce it consistently—or tolerating off-the-clock work in practice—makes the policy legally worthless.
The Legal Rule, Explained
Plain English Summary
Under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL), employees must be paid for all hours worked—including time spent on work-related tasks outside their scheduled shifts.
"Hours worked" includes any time an employee is:
Suffered or permitted to work by the employer
Performing tasks that benefit the employer
Under the employer's control or direction
This means:
If a manager sends a work-related text at 8 PM and the employee responds, that's compensable time.
If an employee checks email "voluntarily" but it's implicitly expected, that's compensable time.
If an employee attends a Sunday Zoom call, even if it's just 15 minutes, that's compensable time.
🎯 Critical Point 🎯
You don't have to explicitly approve or request the work. If you know (or should have known) the work is happening and don't stop it, you're on the hook.
Even if you have a policy prohibiting unauthorized overtime, if managers routinely text employees after hours or expect weekend responsiveness, your policy won't protect you. Courts look at actual practice, not written rules.
The Technical Legal Breakdown
Under 29 C.F.R. § 785.11:
An employee who performs work "outside of scheduled hours" is entitled to compensation for that time.
Employers cannot accept the benefits of off-the-clock work without paying for it, even if the employee volunteered.
Under FLSA:
Non-exempt employees must be paid at least minimum wage for all hours worked
Non-exempt employees must receive overtime (1.5x their regular rate) for hours over 40 in a workweek
Employers must maintain accurate time records showing all hours worked
Under New York Labor Law (NYLL):
Employers must track and pay for all time worked, including brief tasks
Failure to pay wages triggers liquidated damages equal to unpaid wages
Violations of recordkeeping rules carry penalties of up to $5,000 per employee under the Wage Theft Prevention Act (WTPA)
🚩 Common Pitfall 🚩
Employers assume that if an employee doesn't report after-hours work on their timesheet, they don't have to pay it. Wrong. If you knew—or should have known—the work was happening, you're liable.
⚡ Compliance Tip ⚡
"Suffered or permitted" is a broad standard. If managers regularly text employees at night or on weekends, that's implicit permission—even if you have a policy against it.
📌 Pro Tip 📌
Even 10 minutes of work can push an employee over the 40-hour threshold, triggering overtime obligations. Small increments add up fast.
Real-World Pattern: When Texts Turn Into Lawsuits
❌ Getting It Wrong
The Setup
This is a pattern we see repeatedly in retail and hospitality: A company implements a clear policy stating "No unauthorized overtime. Employees must clock in for all work." Managers receive training. Employees sign acknowledgment forms. Everyone understands the rule—on paper.
The Mistake
But in practice, store and shift managers routinely text employees after hours with work-related questions:
"Can you cover Sarah's shift tomorrow?"
"Quick Q—where did you put the deposit?"
"Need you to check inventory counts before opening."
Most responses take 2-5 minutes. Employees don't report the time because it feels "too small" to log. Managers don't think of it as "real work"—just quick administrative questions that help operations run smoothly.
The pattern continues for months or even years across multiple employees. Nobody tracks it. Nobody reports it. The time tracking system shows clean 40-hour workweeks.
The Consequences
When a former employee files a wage claim alleging they spent 15-20 minutes per day responding to work texts and emails outside scheduled shifts over a two-year period, the company's time records show none of this work happened.
Typical Exposure Pattern:
Item | Calculation | Amount |
|---|---|---|
Avg. daily off-clock time | 15-20 min/day = ~18 min average | 0.3 hours/day |
Total hours over 2 years | 0.3 hrs × 5 days/week × 104 weeks | 156 hours |
Unpaid wages | 156 hrs × $18/hr | $2,808 |
Overtime calculation | ~30 of those hours pushed employee over 40/week | +$270 |
Liquidated damages | Equal to unpaid wages (FLSA) | $3,078 |
Attorney's fees | Typical estimate | $15,000+ |
Total exposure (one employee) | $21,156 |
The Multiplier Effect
In these situations, once the first claim becomes known, other current and former employees often come forward with similar allegations. What started as a single $21,000 claim can quickly become a $250,000+ class exposure when twelve employees join in.
🔎 Audit Red Flag 🔎
The company's written policy didn't protect them because managers' routine behavior contradicted it. Courts look at actual practice, not just what the handbook says. When after-hours communication is systemic and expected, having an unenforced policy creates liability rather than preventing it.
✅ Getting It Right
The Setup
A mid-sized hospitality group recognized the off-the-clock work risk before it became a problem and implemented a comprehensive prevention strategy across all locations.
The Right Process
1. Clear Written Policy: The company created explicit rules:
"All work must be performed during scheduled shifts and properly recorded."
"Employees must not respond to work communications outside scheduled hours unless explicitly authorized in advance and compensated."
"Managers may not contact hourly employees outside work hours except for documented emergencies requiring immediate response."
2. Manager Training Investment:
Quarterly compliance sessions specifically on wage and hour rules
Practical guidance: "If you need an answer and it's after hours, either wait until their next shift or clock them in remotely for the time spent responding."
Training on using scheduling software and internal communication tools rather than personal texts for shift coverage
3. Technology Solutions:
Implemented mobile time-tracking app allowing employees to clock in remotely for any work task, no matter how brief
Set up automated daily reminders: "Did you perform any work off-the-clock today? Log your time now."
Created system controls limiting manager access to employee personal contact information during off-hours
4. Consistent Enforcement:
Managers who violated the policy faced progressive discipline, regardless of their performance in other areas
Employees were actively encouraged (and legally protected) to report off-clock work requests
HR conducted quarterly audits of manager communication logs and compared them against time records
The Protection
The system worked because it addressed the root cause: managers who didn't understand that "quick questions" are compensable work. By combining clear rules, practical training, enabling technology, and real consequences for violations, the company created a culture where compliance was the path of least resistance.
The Outcome
Over a two-year period following implementation:
Zero off-the-clock violations documented or claimed
Employee satisfaction scores improved in areas related to work-life balance and fair compensation
Manager performance actually improved as they learned to plan work properly rather than relying on ad-hoc after-hours requests
The initial investment in systems, training, and technology paid for itself many times over through avoided legal fees, settlements, and improved employee retention.
🎯 Best Practice Highlight 🎯
The company's success came from making compliance easy and violations difficult. When the system automatically prompts employees to log time and restricts after-hours communications, nobody has to be the "bad guy" enforcing the rules—the infrastructure does it automatically.
What About "Exempt" Employees?
Here's a dangerous myth: "Exempt employees can work unlimited hours without extra pay, so off-the-clock work doesn't matter for them."
Wrong. Here's Why:
1. Exempt Status Can Be Lost: If you treat an exempt employee like an hourly worker—docking pay for partial-day absences, requiring them to clock in, micromanaging their schedule—you may inadvertently destroy their exemption.
Once exemption is lost, you owe back overtime for every hour over 40/week they worked, potentially going back years.
2. Improper Deductions Trigger Liability: If you deduct pay from an exempt employee for taking a few hours off, but then expect them to answer emails at night or work weekends, you're violating the "salary basis" test. This can blow their exemption—and yours.
3. Misclassification Risk: If your "exempt" employees were never properly classified (they don't meet the salary level, duties test, or both), all that after-hours work you assumed was "free" is actually unpaid overtime.
4. Even Properly Exempt Employees Deserve Boundaries: While exempt employees don't get overtime pay, consistently expecting after-hours work without boundaries creates:
Burnout and turnover
Potential retaliation or discrimination claims ("Why does John get to disconnect but I don't?")
Documentation showing a hostile or unreasonable work environment
How to Protect Your Business (And Your Employees)
Step 1: Audit Your Current Practices
Ask yourself:
Do managers text or email hourly employees outside work hours?
Do employees respond to work communications after clocking out?
Are employees doing "quick tasks" before or after their shifts without clocking in?
Are non-exempt salaried employees working more than 40 hours/week?
If you answered "yes" to any of these, you have a problem.
Step 2: Create (or Update) Your Policy
Sample Language:
Off-the-Clock Work Prohibition
All non-exempt employees must be paid for all time worked. Employees are prohibited from performing any work-related tasks outside their scheduled shifts without prior authorization from HR or their supervisor.
"Work" includes, but is not limited to: responding to emails, texts, or calls; attending meetings; reviewing documents; or performing any task that benefits the company.
Employees who perform unauthorized work must immediately report that time to their supervisor for payment. Failure to report time worked is a policy violation, but the Company will still compensate all time worked.
Managers and supervisors are prohibited from contacting hourly employees outside scheduled work hours except in genuine emergencies. Any work performed outside scheduled hours must be pre-approved and compensated.
Step 3: Train Your Managers
Managers are your biggest liability. They need to understand:
What counts as "work"
Why "quick questions" aren't quick—they're compensable
How to schedule work properly instead of texting employees at night
The penalties for violating wage and hour rules
Training Tip: Use real examples. Show managers the cost of a single wage claim and explain how their texts contributed to it.
Step 4: Implement Technology
Use tools that make compliance easy:
Mobile time-tracking apps that allow employees to clock in remotely for any work task
Email/text blockers that prevent managers from contacting hourly employees outside work hours
Automated reminders prompting employees to log any off-clock work
Step 5: Monitor and Enforce
Conduct monthly or quarterly audits of timecards vs. actual work performed
Review manager communications (texts, emails, Slack) for after-hours requests
Discipline managers who violate the policy
Encourage employees to report violations without fear of retaliation
🚩 Red Flag 🚩
If your culture punishes employees for logging overtime, you're training them not to report time worked—and setting yourself up for a massive wage claim.
Special Consideration: Remote Workers
Remote work has made off-the-clock work even more common—and harder to track.
When employees work from home:
The line between "work time" and "personal time" blurs
Employees may feel pressure to be "always available"
Managers may not realize how often they're pinging employees after hours
Solutions for Remote Teams:
Use time-tracking software that integrates with communication tools (Slack, Teams, email)
Set clear expectations about work hours and responsiveness
Implement "right to disconnect" policies that prohibit after-hours communications
Train employees to log every work interaction, no matter how small
When Small Minutes Add Up to Big Liability
Here's a typical risk calculation pattern we see in mid-sized companies:
Assume you have 50 non-exempt employees, and each spends an average of just 15 minutes per day on off-the-clock tasks—responding to emails, answering manager texts, or handling "quick" work calls.
Annual Exposure Pattern:
Item | Calculation | Total |
|---|---|---|
Minutes per employee/day | 15 min | 0.25 hours |
Days per year | 50 employees × 0.25 hrs/day × 260 days/year | 3,250 hours |
Average hourly wage | $20/hour | |
Unpaid wages | 3,250 hrs × $20 | $65,000 |
Liquidated damages | Equal to unpaid wages | $65,000 |
Overtime premium (conservative estimate: 20% of hours pushed employees over 40/week) | 650 OT hours × $10 (half-time premium) | $6,500 |
Attorney's fees | Estimated for class action | $150,000+ |
Total Exposure | $286,500 |
That's nearly $300,000 in potential liability from just 15 minutes per day of untracked work—a pattern we've seen repeatedly across industries.
And this calculation assumes only a one-year lookback. Under federal law, willful violations can trigger a three-year lookback. In New York, wage claims can go back six years. The exposure multiplies quickly.
Final Thoughts: Fighting the Good Fight
Off-the-clock work is one of the most common—and most preventable—wage and hour violations. It doesn't require malice or intent to defraud. It just requires inattention, poor systems, and managers who don't understand the rules.
The solution isn't complicated:
Track all time worked—even 5 minutes counts
Train managers not to text or email hourly employees after hours
Enforce your policies consistently
Pay employees for every minute they work
Your employees aren't trying to cheat you by logging 10 minutes here and there. They're trying to be good employees. The law simply says you have to pay them for their time.
Get ahead of this issue before it turns into a lawsuit. Audit your practices, fix your systems, and train your team. Because that "quick question" at 9 PM might cost you a lot more than you think.
Keep fighting the good fight.
