Can my employer make me work off the clock?

No. And a written policy saying "don't work off the clock" does not get an employer off the hook when they know you're doing it anyway.

Five minutes before your shift, taking the handover. Ten minutes after close, cashing out. The messages you answer from the sofa. The setup you do before you're allowed to clock in.

None of that is free, and none of it is a favour. If it's work, and your employer knows or should know you're doing it, it's payable.

The rule, in one sentence

The Fair Labor Standards Act requires that non-exempt employees be paid for all hours "suffered or permitted" to work. That phrase is doing enormous work. It doesn't say authorised. It doesn't say clocked in. It says permitted.

Two consequences employers routinely misunderstand:

• A policy banning off-the-clock work doesn't end the obligation. If they know it's happening and accept the benefit of it, they owe you for it. "We told them not to" is not a defence.
• You cannot volunteer the time away. Non-exempt employees can't waive the right to be paid, even willingly. Courts consistently reject the "she offered" argument.

What the DOL said in 2026

This got a genuinely useful clarification recently. In Opinion Letter FLSA2026-8, issued 28 May 2026, the Department of Labor addressed a hospital with roughly 18,000 non-exempt staff. Employees could clock in up to seven minutes early; the system rounded those punches up to the scheduled start, so the early window was never paid.

In those minutes, people were taking patient handoff reports, finding assignments, reviewing charts. The DOL's conclusion:

• That pre-shift work was compensable. It was "integral and indispensable" to the job — a therapist can't safely begin patient care without knowing each patient's condition — and once the employer knows it's happening, it's paid time.
• Waiting in line to clock in was not. That's preliminary, not principal work. The same distinction the Supreme Court drew in Integrity Staffing v. Busk.
• The de minimis defence failed. Where the work is regular and predictable, and the employer already has timekeeping technology capable of capturing it, "it's only a few minutes" doesn't hold.
• The rounding wasn't neutral. Rounding is only permitted if it's facially neutral and averages out over time. Rounding early clock-ins up, while never rounding the other way, systematically undercompensates.

The arithmetic nobody does

Seven minutes a day, five days a week, is about thirty hours a year. At $20 an hour, that's roughly $600 a year that never reached a paycheck. Multiply by a hundred employees, add a two-year lookback, and double it for liquidated damages, and the minutes nobody was watching become a six-figure claim.

Put your own rate into the calculator and look at the per-minute figure. That's what each of those minutes was worth. It is not nothing.

What usually counts as payable

• Pre-shift work that's integral to the job — setup, handover, chart review, equipment prep, opening procedures.
• Post-shift work — closing, cashing out, cleaning, locking up.
• Work during an unpaid break. If you're covering the phone, you're working. A meal break where you're not fully relieved of duty is generally paid time.
• Answering calls, texts and email at home, when it's more than brief and occasional and the employer knows about it.
• Required training and meetings, in most cases.
• Fixing your own mistakes. "Redo it on your own time" is not a lawful instruction.

What generally doesn't count: your ordinary commute, and time you spend on the premises genuinely not working — sitting with a coffee before your shift, chatting with colleagues, waiting in a queue to punch in.

Your state may go further

California and Pennsylvania have rejected the federal de minimis defence in significant wage cases, and other states are moving the same way. In California, unpaid minutes and one-sided rounding can also feed wage-statement and waiting-time penalties on top of the wages themselves. New York allows recovery of unpaid wages going back six years, against the federal two.

What to do

1. Start a record today. Your own contemporaneous notes — times, dates, what you did. Keep them somewhere your employer cannot reach. Where an employer's records are inadequate, a worker's credible personal records carry real weight.
2. Raise it internally, in writing. An email creates a paper trail and a date. Many cases really are payroll sloppiness, and get fixed.
3. Know the clock. Federal recovery reaches back two years — three if the violation was wilful — and back pay can be doubled as liquidated damages. Some states are far more generous.
4. File if it isn't fixed. The DOL's Wage and Hour Division investigates for free, as do most state labor agencies. Retaliating against you for raising it is itself illegal.

And if you're salaried and being told you're not owed any of this — check whether you're actually exempt. A lot of people aren't.

General information, not legal advice. Wage-and-hour cases are fact-specific and state law varies widely. For your situation, contact your state labor agency or an employment attorney — many take wage claims on contingency, and the FLSA allows prevailing employees to recover attorney's fees.

Keep reading