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Is it legal in New York to force employees to work off the clock?

For workers making an hourly wage instead of a salary, overtime pay can be a major boon. Extra hours require at least 150 percent their usual rate of pay, making time worked beyond 40 hours in any given pay period more lucrative. Unfortunately, due to that increased cost, many employers try to avoid paying overtime wages.

Carefully monitoring employee time clock records to ensure no one goes over 40 hours in a week is a perfectly legal way of reducing or completely avoiding overtime pay. Asking staff to clock out and then return to work off the clock, however, is not. That is a form of wage theft, and it is illegal.

Federal law mandates overtime pay for hourly workers

According to the Fair Labor Standards Act (FLSA), all non-exempt employees must receive overtime pay for any hours beyond 40 they work in a given pay period. The law also mandates the minimum time and a half payment rate, although employers can choose to pay more as an incentive to employees.

Sadly, quite a few businesses or managers will take liberties with the law. In many cases, employees may feel like they do not have an option when a manager requests that they clock out and then return to work. If they need the job, they may worry about retaliation for refusing such a request.

Know when your work week starts and ends

Sometimes, you may think you've worked overtime hours, but you actually haven't. Many people assume that their work week begins on Monday morning and ends when they clock out on Friday afternoon. That isn't always the case.

Your employer has the right to set any start and end time for your work week, provided that they consistently use the same day and time. Regularly changing the start and end times to avoid overtime pay is not legal. Similarly, averaging the hours an employee works over more than one work week to avoid overtime pay obligations is not legal either. Once you know when your work week starts and ends, you can accurately track if you deserve overtime pay.

Some businesses offer an incentive for this form of wage theft

Many retail businesses and restaurants have carefully created staffing plans that reflect sales averages on any given day. In order to promote careful scheduling and avoid overstaffing, these companies may offer sizeable bonuses to managers who maintain their staffing hours within the range allocated within the plan.

Some managers will work extra hours to make up the difference, thus earning that bonus. Others, however, could start pushing their staff to work uncompensated in order to earn the bonus without actually complying with either the planned staffing hours or the law. In that situation, taking steps to assess your legal right to overtime pay could be the best decision.

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