Working “Off-The-Clock” in Nevada – Is It Legal?

Nevada law generally requires employers to pay employees for their off-the-clock work. Off the clock work means job-related duties that an employee does:

1. outside of the employee’s regular shift, and
2. with the employer’s knowledge

Employees who are owed back pay for working off-shift may try to recover their wages by either:

• filing a wage claim with the Nevada Labor Commissioner or the U.S. Department of Labor, or
• suing the employer in Nevada state court or federal court

Depending on the case, the employee may be able to recover all their back pay plus interest as well as:

• overtime pay (if applicable)
• attorneys’ fees,
• court costs, and
• punitive damages (if the employer behaved in an egregious way)

In this article, our Las Vegas Nevada labor law attorneys discuss the following:

• 1. Definition
• 2. Examples
• 3. Legality
• 4. Claims and lawsuits
• 5. Damages

1. Nevada’s legal definition of “off the clock” work

Off the clock work generally means work that employees do for their job:

1. outside of the employee’s regular shift, and
2. with the employer’s knowledge

In other words, off-shift work is unpaid job-related tasks that employers know — or should know — that their employees are doing for them during their off-hours.

Note that employers are not allowed to manipulate timesheets or “round down” time in an effort to shave off work hours or minutes that fall outside employees’ regular shifts.¹

2. Examples of “off the clock” work

Common examples that may qualify as off shift work include:

• Work that an employee does “pre-shift,” such as preparing to open a store
• Work that an employee does “post-shift,” such as closing up a store
• Attending a work meeting outside of normal work hours
• Taking work calls or reading and answering work emails outside of normal work hours
• Working through a lunch break in Nevada
• Working from home

Note that an employer must know — or should have reason to know — of an employee’s unpaid work for it to be considered off shift. Sometimes the employer specifically requests that the employee do unpaid work. Other times, employers subtly encourage the employee do unpaid work.

Example: Maxine works at a server at a fancy restaurant. Maxine’s boss Jim told her that he expects her to have her makeup and hair done in an elaborate style when she shows up to work. So every day before work, Maxine spends an hour doing her hair and makeup. Since Maxine is doing her hair and makeup at her boss’s instructions, this hour should qualify as off the clock work.

As discussed below in section 3, Jim in the above example may be required to pay Maxine for the hour it takes for her to do her hair and makeup. But if Jim never gave Maxine any instructions on her appearance — and Maxine took an hour to make herself up entirely on her own initiative — then Jim probably would not be required to pay Maxine for that hour.²

3. Nevada laws for “off the clock” work

Employers in Nevada are typically required to pay their employees for all the time they ask or encourage their employees to work, even if the work occurs outside of their normal shift (“off the clock”).

Note that some employees are “exempt” from getting paid for working off shift. In general, blue-collar workers and hourly employees are entitled to extra pay for working outside of their shift. And in general, independent contractors and most salaried employees are not eligible for extra pay. However, every case is unique and depends on:

• the nature of the job
• employment contracts (if any)
• employment handbooks (if any)

An experienced employment law attorney in Nevada can help an employee determine whether he/she is “non-exempt” for the purposes of pursuing off-the-clock pay.³

3.1. Overtime “off the clock” pay

Employers are typically required to pay workers the same wage for both their on-the-clock and off-shift work. But employers may be required to pay 1.5 times the workers’ standard wage if they work:

• more than 40 hours a week, or
• more than 8 hours in a day (if they normally earn less than 1.5 times the Nevada minimum wage)

Not all workers are eligible for this “time and a half” overtime pay. Learn more about Nevada overtime laws.⁴

3.2. Federal “off the clock” laws

Federal law under the Fair Labor Standards Act (FLSA) is similar to Nevada law in that it requires employers to pay non-exempt employees for all hours worked, even if off shift. A labor law attorney would help an employee decide whether to seek unpaid wages in state or federal court.⁵

4. Bringing claims or lawsuits in Nevada for “off the clock” work

Workers who are owed wages for off-shift work in Nevada are advised to speak with the employer in an attempt to resolve the issue privately. Perhaps the employer is innocently unaware of its obligations to pay for any job-related duties that fall outside the employee’s shift.

But if the employer rebuffs the employee’s “good faith effort” to negotiate, the employee has two (2) years from the date of the employer’s non-payment to file a wage claim online with the Nevada Office of the Labor Commissioner. The Labor Commissioner may then look into the matter, hold a hearing, and order the employer to pay any back wages. (Depending on the case, employees may choose to file a federal claim with the U.S. Department of Labor instead of with the Nevada Labor Commissioner.)⁶

An alternative to filing a wage claim is to sue the employer in civil court for unpaid wages Litigation is very complicated, however, so employees should retain an attorney to write and manage all the paperwork. Note that there is also a two (2) year statute of limitations for suing in civil court.⁷

4.1. Class action lawsuits

Workers who are owed a relatively small amount of off-the-clock pay may believe that filing a claim or bringing a lawsuit is not worth the effort. But if the workers join forces, they may be able to bring a class-action lawsuit. Class actions are often more efficient and cost-effective than regular lawsuits.

The challenge of bringing a class action suit is that there is a very high bar for proving that all the plaintiffs form a legitimate “class.” Before a class action lawsuit can proceed, the plaintiffs’ attorneys need to show four things:

1. whether there are enough plaintiffs to form a class;
2. whether the plaintiffs’ claims have enough in common;
3. whether the named plaintiffs in the lawsuit are “typical” of the rest of the plaintiffs in the class; and
4. whether the named plaintiffs adequately represent the unnamed ones

A skilled employment law attorney would help workers determine whether trying for a class action is could be successful.⁸

5. Damages

Workers who file a wage claim with the Nevada Labor Commissioner may be able to recover all the back pay they are owed (for the last two years) plus interest. If workers instead pursue a lawsuit, the court may also award them attorneys’ fees and court costs.

Additionally, courts may award employees punitive damages if the employer maliciously withheld off-the-clock pay. In many cases, punitive damages can be far bigger than any unpaid wages the employer owes. The purpose of punitive damages is to penalize the defendants while making an example of them to everyone else.⁹

Work in California? Read our article about California “off the clock” labor laws.

Legal References