Oregon Employees are Entitled to be Paid for Off the Clock Work

by Jim Vogele

Working off the clock refers to time Oregon employees spend working without pay for the benefit of their employers.  For example, employees may be encouraged or required to perform work at the beginning of a shift before punching in for the day or at the end of a shift after punching out.  The consequences of these practices can be significant.  An employer with 1,000 employees who work ten minutes off the clock each day receives the unpaid equivalent of four 40-hour weeks each day.  These practices short-change employees and also provide employers with an unfair advantage over law-abiding employers.

Definition of off the clock work in Oregon

Off the clock work is not limited to employees who punch an on-site time clock each day.  Other circumstances in which employees routinely work without pay include:

  • Working through lunch breaks after punching out for lunch
  • Taking work home in the evening and on weekends
  • Checking emails or cell phones and responding to requests for information
  • Making bank deposits or mail runs
  • Delivering packages for shipping
  • Traveling between worksites during the work day
  • Preparing tools or equipment for the day
  • Waiting for assignments during the work day

These are all compensable work tasks.  Hourly employees are entitled to be paid for any such time (and salaried employees who have been wrongfully classified as exempt from overtime or minimum wage requirements are also entitled to be paid for all the time they work as well).

The “suffer or permit” standard for off the clock work

Off the clock work does not have to be directly ordered or demanded by the employer for it to be compensable.  The legal standard is that employees are entitled to be paid for all time that the employer will “suffer or permit” their employees to work.  In practical terms, this means that the employer who knows or should know that his employees are working off the clock (e.g., taking work home on weekends) is obligated to pay for this time.

Record-keeping issues

In the case of employers who “suffer or permit” their employees to work off the clock, the employer’s records will almost always be inaccurate.  Many employers have been held liable for requiring employees to revise timesheets to eliminate overtime hours.  In any event, Oregon and federal law place the burden on the employer to maintain accurate records of time worked by employees.  The U.S. Supreme Court decision in Anderson v Mt. Clemens Pottery (1946) established this standard.  Under Mt. Clemens Pottery, when accurate records of hours worked have not been maintained, the employee can estimate the hours worked as a matter of “just and reasonable inference.”

Under Mt. Clemens Pottery, an employee working at home on the weekend can recover wages for that time even if he or she has not punched a time clock or recorded those hours on a formal time sheet.  The employee can establish the amount of hours worked by testifying, providing any supporting documentation, and making an honest estimate of the hours worked.

Off the clock work is often overtime work

When Oregon employers require employees to work off the clock, this can lead to overtime law violations, minimum wage violations, and breach of contract claims.  Under Oregon and federal law, overtime compensation is typically required to be paid at a time and a half rate after 40 hours of work per week.  Like employees across the country, Oregon employees have filed successful lawsuits for unpaid overtime compensation as a result of being required to work off the clock.   The employers in these cases have included major retailers and other employers in a wide variety of businesses.

Please note that strict filing deadlines apply to claims for off the clock work.  If you have been working off the clock, you should promptly contact an employment attorney for advice.