Can my employer make me wait until it;s busy to clock in if I show up on time for a scheduled shift?

I show up to work on time at 12 noon; I can see that’s it not busy and ask management if I may clock in. They reply not yet, so I sit and wait 30 minutes, 45 minutes and soon an hour passes but still no word from management while I’m still sitting in the restaurant waiting to clock in for work. Then 3 hours pass and I’m told to finally clock in, 3 hours of my own time sitting waiting to clock in after my scheduled work time. Is this legal or is it cause of dismissal from employment if I were to leave after sitting and waiting an hour next time?

Asked on August 21, 2016 under Employment Labor Law, New Mexico


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If your employer has you wait at your workplace without giving you the freedom to come and go as you choose and engage in personal activities, that is considered to be compensable work time; accordingly you need to be paid for it. This is true even if technically you are not "on the clock" (i.e. are not allowed to clock in). If your employer is doing this to you or any other employee, they are breaking labot laws. At this point, you can either contact your state's department of labor and file a wage claim. You can also consult with an employment law attorney, especially if there numerous other employees who are being treated in the same way.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If you show up when you are scheduled to do so (i.e. you did not voluntarily show up early without your employer telling you to do so), then your employer can send you home if it thinks it won't need you--in which case you don't clock in, aren't paid, but are free for the rest of the day and can go wherever, do whatever you want--or they can let you clock in, start your work day, and start paying you. There is no middle ground: if they require you to sit at or in close proximity to the work place so that you can't go and do what you want, that is work: working is doing what the employer tells you to do, not what you want, and not being able to do your own activities, even if what you are doing is unproductive.
So what this means is, if the employer tells you to stay and you must, then they have to start paying you; even if they don't let you clock in, that's work time, and not starting the clock doesn't mean you don't have to be paid. If they are doing this, you could contact the state department of labor to file a wage complaint for unpaid wages.
But if they tell you that they don't need you and you don't need to stay, but you choose to stay of your own free will to see if things get busier, then they don't have to pay you: in this case, you voluntarily choose to stay at the restaurant when you did not have to.

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