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May 11, 2010
Allowing Employees to Work Off-the-Clock Can Be Costly

Employers who allow workers to work off-the-clock may face fines and/or lawsuits filed by employees trying to recover back wages, Laura P. Worsinger, Esq., said during a BLR webinar titled "Reducing Overtime Costs: What You Legally Can—and Can't—Do to Keep Workers at Their Straight-Time Rates."

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Fines for Violations

The FLSA prohibits the shipment of goods in interstate commerce which were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions.

She cautioned that employers who let employees to work off-the-clock may be subject to penalties:

  • Willful violations may be prosecuted criminally and the violator fined up to $10,000. A second conviction may result in imprisonment.
  • Employers who willfully or repeatedly violate this provision may be subject to a civil money penalty of up to $1,100 for each such violation.

Recovery of Back Wages

According to Worsinger, the U.S. Department of Labor (DOL) may bring suit for back wages and an equal amount as liquidated damages. In addition, an employee may file a private suit for back pay and an equal amount as liquidated damages, plus attorney's fees and court costs.

She also noted that:

  • The DOL may obtain an injunction to restrain any person from violating the FLSA, including the unlawful withholding of proper minimum wage and overtime pay.
  • An employee may not bring suit if he or she has accepted back wages under the supervision of the Wage-Hour Division or if the Secretary of Labor has already filed suit to recover the wages.
  • A two-year statute of limitations applies to the recovery of back pay, except in the case of willful violation, in which case a three-year statute of limitations applies.


It is a violation of the FLSA to fire or in any other manner discriminate against or take adverse action against an employee for filing a complaint or for participating in a legal proceeding under FLSA.

Laura P. Worsinger, Esq. is Of Counsel with the Los Angeles office of Dykema Gossett PLLC. She has broad counseling and litigation experience and specializes in the defense of employers in individual and class actions involving wage and hour violations, misclassification, discrimination, wrongful termination, and other employment-related proceedings. She can be contacted at

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