The FLSA defines employ as, “to suffer, let, or permit to work.” The Supreme Court added to that that hours worked includes time spent “in mental exertion that is controlled or required by the employers.”
If an employee does any work with the employer’s knowledge, whether unscheduled or even unauthorized, the work must be paid.
This goes for work performed at the job site or away.
If the employer does not wish for the employee to work, the employer must enforce the schedule. That is the duty of the employer. Essentially, the employer cannot get away with saying, “It’s not my fault this employee likes to work so much. I never said I was going to pay her.” And then reap the uncompensated benefits. If the employer doesn’t intend to pay, the employee must be made to stop working.
Avoid Off-the-Clock Work
To avoid litigation or an unfriendly view by other employees, employers should post a policy stating that the company does not allow employees to work off the clock and/or away from the office. Employees should be aware that any violations will lead to disciplinary action. Of course, the best way to solve this problem is by requiring employees to clock in when they work. With an online time tracking system, employees can work from home at night as long as they clock in first!