Top Ten Tips Disclaimer
The general rule is stated in 29 C.F.R. 785.11, which notes that work that is "not requested, but suffered or permitted, is work time." The regulation lists the specific example of employees who choose to keep working after the end of their shifts. The reason the worker decides to continue with the work is irrelevant. As long as the employer "knows or has reason to believe that he is continuing to work", the hours so spent constitute "working time" (in a similar vein, working "off the clock" is never allowed for non-exempt employees). 29 C.F.R. 785.12 extends that rule to work performed at home or at other places away from the normal job site, as long as the employer "knows or has reason to believe that the work is being performed". Many employers feel that such time should not be payable as long as the employer has not authorized the extra work, but the DOL's position on that is that it is up to the employer to control such extra work by using its right to schedule employees and to use the disciplinary process to respond to employees who violate the schedule (29 C.F.R. 785.13). This also specifically applies in the case of employees who are permitted or told to work at their desks during meal breaks; as noted in section D, such "breaks" are really work time. It falls on the employer to control whether the employee works during a meal break, or actually takes a break for a meal.
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