Can an employer clock you out?

UPDATED: Sep 30, 2022

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Can an employer clock you out?

I am required to be on call for a hospital from whenever the last person leaves to the next day at 7

am. I got called in for a case at 5 in the morning and was supposed to begin my normal shift that day at

7:30. My employer clocked me out once the time had reached 7:30 even though I was still in the room

doing the case. I get paid time and a half for being called in. Is it legal that my employer clocked me out even though I was still working for that case I was called in for?

Asked on July 21, 2017 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

No, you cannot be clocked out if still working. (If you stopped working but forgot to clock out, the employer can do that for you.) You must be paid for all work you do, even if it is before or after your shift: the important thing is not your schedule, but whether you are working. Hourly employees must be paid for all work done--your emloyer could have sent you home and had someone else take over, but if you were still working, you were still on the clock and had to be paid.
That said, if you regular shift was to start at 7:30 and your wage at that time reverted to regular wage, they could shift you down to the regular wage once your shift starts; once your shift starts, you are paid as per your shift, even if still working on a case that began off shift; they do not need to pay you more than your regular shift wage once your shift starts.
So if they failed to pay you at all for work time, that is illegal, and you could file a complaint with the department of labor for unpaid wages. But if they just changed you to your regular shift wages, that is legal.
(Note: there is NO legal requirement that you be paid extra for being called in--your job could require you to come in off shift but still pay you your base wage. It is voluntary for them to pay you more, so they can decide to stop paying the extra when your shift begins.)

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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