Are You Liable If Your Employees Work Off The Clock Without Your Knowledge?

boznos law office naperville il

Are You Liable If Your Employees Work Off The Clock Without Your Knowledge?


The wage and hour laws applicable to overtime compensation (the Fair Labor Standards Act, 29 U.S.C § 201 et seq., and the Illinois Minimum Wage Law, 820 ILCS §104 et seq.) are designed to ensure that covered workers are paid time and a half at their base rate of pay for all hours worked over 40 in a single workweek. However, what happens when an employee works over 40 hours but the employer has no knowledge of that work? The answer may surprise you!

Recently, a court in Illinois found that an employer was not liable when it had no knowledge that one of its employees was working “off the clock”. In this case, the employer had a printed policy that forbid working off the clock or not reporting all hours worked. However, merely having a policy in place is not enough. An employer must also actively enforce that policy through regular communication to employees or interns and scrutinizing all time records. Further, in this particular instance, the complaining employee herself had admonished and provided disciplinary documentation to another employee who had violated that same policy. The owners of the company also had no knowledge that the employee in question was working off the clock as the owners would regularly arrive at work several hours after the shifts were to begin and therefore had no idea that work was performed off the clock before the start of the official work day.

The court also went on to hold that an employee who performs “di minimus” duties for a brief period of time (those not directly benefitting the employer in any meaningful way) could not count that time towards hours worked. In this particular case, the employee would regularly make coffee for the office and straighten out the desks of her employees. The court went on to note however that when the employee spent time setting up work/shift schedules and providing materials for the other employees to be prepared to start their shifts, that those were not “di minimus” activities and could be counted.

The bottom line for employers is that they must have an effective policy prohibiting employees from working “off the clock”. With the advent of smart phones and the ability to answer e-mail from home, this is extremely difficult to enforce. Additionally, the employer must actively enforce the policy through regular communication and monitoring of the time records of hourly workers. An employer can not gratuitously accept work performed for his/her benefit off the clock and then claim having no knowledge that the work was performed.

With over 30 years’ experience in advising employees and businesses on labor and employment issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the ever changing employment law landscape. Call Bill Boznos today at (630) 375-1958 or contact us at through our website at



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