Off-the-Clock Work Laws by State: Portal-to-Portal Act, Frlekin, and the California Control Test

Off-the-clock work is dangerous because the missing time is usually small enough to ignore until it repeats across employees and pay periods.

The Fair Labor Standards Act defines "employ" to include "to suffer or permit to work" (29 USC §203(g)), and the Portal-to-Portal Act of 1947 (29 USC §254) layers two exclusions on top: ordinary commute, and activities preliminary or postliminary to the principal activity. For employers, the practical question is whether the work was really outside the paid workday, or whether the employer knew or should have known employees were still working.

The Supreme Court has policed the boundary repeatedly. IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), pulled donning-and-doffing of safety gear inside the workday. Integrity Staffing Solutions v. Busk, 574 U.S. 27 (2014), pushed post-shift security screenings outside it. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), set the burden-shifting rule that makes inadequate timekeeping the employer's loss by default. Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016), extended Mt. Clemens to class-wide representative evidence.

State law takes the federal floor and, in California, rewrites the test entirely. Frlekin v. Apple Inc., 8 Cal.5th 1038 (2020), held that mandatory exit bag checks are compensable in California even though Integrity Staffing said the opposite under the FLSA. Troester v. Starbucks Corp., 5 Cal.5th 829 (2018), rejected the federal de minimis doctrine for state-law claims — minutes count.

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Quick reference

Federal "employ" definition: "suffer or permit to work" (29 USC §203(g)).
Federal exclusions: ordinary commute + preliminary/postliminary activities (29 USC §254(a), the Portal-to-Portal Act).
Federal exception that swallows the exclusion: an activity "integral and indispensable" to the principal activity is compensable (IBP v. Alvarez, 546 U.S. 21 (2005); Integrity Staffing v. Busk, 574 U.S. 27 (2014)).
Federal "continuous workday" rule: once the workday begins via the first compensable activity, all time through the last compensable activity is hours worked (IBP v. Alvarez; 29 CFR §790.6).
Federal de minimis rule: 29 CFR §785.47; courts typically apply a ~10-minute-per-day threshold under Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984).
California rejects the federal de minimis doctrine: Troester v. Starbucks, 5 Cal.5th 829 (2018).
California uses a broader "subject to control" test: Frlekin v. Apple, 8 Cal.5th 1038 (2020); Morillion v. Royal Packing, 22 Cal.4th 575 (2000).
Federal salary threshold relevance: misclassified salaried-non-exempt employees become the primary off-the-clock class — the floor is $684/week ($35,568/yr) under 29 CFR §541.600(a) as of May 2026.
Federal statute of limitations: 2 years, 3 years for willful violations (29 USC §255(a)); liquidated damages double the recovery (29 USC §216(b)).
Burden-shifting on missing records: Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946); aggregated proof permitted in class actions (Tyson Foods v. Bouaphakeo, 577 U.S. 442 (2016)).
Anchor cases: Steiner v. Mitchell, 350 U.S. 247 (1956); IBP v. Alvarez, 546 U.S. 21 (2005); Integrity Staffing v. Busk, 574 U.S. 27 (2014); Sandifer v. United States Steel Corp., 571 U.S. 220 (2014); Frlekin v. Apple, 8 Cal.5th 1038 (2020); Troester v. Starbucks, 5 Cal.5th 829 (2018); Morillion v. Royal Packing, 22 Cal.4th 575 (2000).

The 5 most expensive off-the-clock mistakes

Relying on a "no off-the-clock work" handbook policy as a defense. The FLSA's "knew or had reason to know" standard means liability attaches whenever the employer had constructive knowledge — emails sent at 9 p.m., punch records showing patterns immediately before or after the shift, supervisors who walked past employees still working. Allen v. City of Chicago, 865 F.3d 936 (7th Cir. 2017), framed the rule: an employer cannot "stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation." A handbook clause prohibits the conduct; it does not extinguish liability when the employer permits it in practice. Exposure runs at the regular rate (or 1.5× for overtime hours), doubled by liquidated damages under 29 USC §216(b), reaching three years under the willful-violation statute of limitations at 29 USC §255(a).
Treating post-shift security screenings as non-compensable in California. Integrity Staffing Solutions v. Busk, 574 U.S. 27 (2014), unanimously held that up to 25 minutes per day of Amazon warehouse security screenings was NOT compensable under the FLSA because the screening was not the principal activity. Frlekin v. Apple Inc., 8 Cal.5th 1038 (2020), held the opposite under California law — Apple's mandatory exit bag checks are compensable because California's "subject to control" test asks whether the employer controlled the employee during the time, not whether the activity was indispensable. The Apple settlement reached approximately $30.5 million for a class of roughly 14,683 California retail employees (Apple, Inc. v. Frlekin, Case No. C 13-03451 WHA, N.D. Cal. final approval Aug. 12, 2022). Every multistate retailer with the same federal-only screening policy is exposed in California.
Treating a few minutes of pre-shift or post-shift work as de minimis in California. Troester v. Starbucks Corp., 5 Cal.5th 829 (2018), held that California has not adopted the federal de minimis doctrine codified at 29 CFR §785.47. Starbucks shift supervisors performed 4–10 minutes of closing tasks daily (transmitting sales, locking the store, walking coworkers to cars) totaling about $102.67 in unpaid wages over 17 months. The California Supreme Court held that "an employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine." Regularity defeats the defense.
Skipping donning and doffing time for protective gear. IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), held that donning and doffing unique protective gear is integral and indispensable to the principal activity, and that the walk between the changing area and the production floor is compensable under the "continuous workday" rule. Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016), upheld a class verdict of approximately $5.8 million in donning-and-doffing wages based on representative evidence — average time multiplied across the class — because Tyson kept no records. Sandifer v. United States Steel Corp., 571 U.S. 220 (2014), carved out a narrow §3(o) exception for collectively-bargained "changing clothes" time, but the carve-out applies only to ordinary work clothes under a CBA, not to specialized protective equipment.
Missing remote-work off-the-clock exposure. Post-pandemic work patterns produce continuous-workday questions the original FLSA framework never anticipated. An employee who logs into the corporate VPN before clocking in, answers Slack messages after clocking out, or runs an EMR sync overnight has performed compensable work. Allen v. City of Chicago, 865 F.3d 936 (7th Cir. 2017), applied the standard to BlackBerry-era police work. The 2020 DOL Field Assistance Bulletin No. 2020-5 confirmed that employers exercise reasonable diligence by maintaining a reasonable process for an employee to report uncompensated work time, but the constructive-knowledge standard still applies — patterns of after-hours emails the employer permits become constructive knowledge.

The federal floor

29 USC §203(g) — the "suffer or permit" definition

The FLSA's definitional core is broader than most employment statutes. Section 3(g) defines "employ" to include "to suffer or permit to work." The phrase predates the FLSA — it was lifted from state child-labor statutes — and the Supreme Court has read it to make employers liable for work they did not affirmatively request when they had reason to know it was being performed.

The operative test, repeated across the case law: an employer who "knew or had reason to know" of the work owes compensation, regardless of whether the work was authorized. The standard is constructive knowledge; actual knowledge is sufficient but not required.

29 USC §254 — the Portal-to-Portal Act

The Portal-to-Portal Act of 1947, Pub. L. 80-49, 61 Stat. 84, was Congress's response to the Supreme Court's pre-1947 expansion of compensable time in cases like Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944), and Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). Section 4(a) of the Portal-to-Portal Act, codified at 29 USC §254(a), excludes from the workweek:

"Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform"; and
"Activities which are preliminary to or postliminary to said principal activity or activities."

The exclusion applies only to activities performed "either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities" (§254(a)). It is a temporal carve-out — activities during the workday remain compensable under §203(g).

The 1996 Employee Commuting Flexibility Act, Pub. L. 104-188, §§2101–2103, 110 Stat. 1928, added §254(a)'s present-day proviso that the use of an employer-provided vehicle for commute travel is not a principal activity, but only when (a) the travel is within the normal commuting area for the employer's business and (b) the use of the vehicle is subject to an agreement between the employer and the employee or the employee's representative.

The "integral and indispensable" test

The Portal-to-Portal Act's exclusion of preliminary and postliminary activities is bounded by an exception: an activity that is itself an "integral and indispensable part of the principal activities" remains compensable. The Supreme Court has articulated the test in four anchor decisions.

Steiner v. Mitchell, 350 U.S. 247 (1956). Workers at a wet-battery plant changed clothes and showered at the end of the shift to remove lead and sulfuric acid exposure. The Court held the activities were "integral and indispensable" — without them, the work could not safely be performed — and therefore compensable notwithstanding the Portal-to-Portal Act. Steiner established that activities required by the nature of the work (not by the employer's preference) survive the §254(a) exclusion.

IBP, Inc. v. Alvarez, 546 U.S. 21 (2005). Meat-processing plant workers donned and doffed unique sanitary and protective gear (chainmail aprons, plexiglass arm guards, sterilized whites). The Court unanimously held that the donning and doffing were integral and indispensable and that the time spent walking from the changing area to the production floor was likewise compensable under what the Court called the "continuous workday rule." Justice Stevens wrote: "any activity that is integral and indispensable to a principal activity is itself a principal activity," and once a principal activity has begun, the workday continues until the last principal activity ends.

Sandifer v. United States Steel Corp., 571 U.S. 220 (2014). Steelworkers' donning of flame-retardant jackets, pants, hoods, hardhats, snoods, work gloves, leggings, metatarsal boots, safety glasses, ear plugs, and respirators under a collective bargaining agreement. The Court held that the activity qualified as "changing clothes" within the meaning of 29 USC §203(o), which permits a CBA to exclude such time from hours worked. Sandifer defined "clothes" by the items' "designed and used to cover the body and commonly regarded as articles of dress" character; it preserved the §3(o) carve-out but limited it to ordinary work clothes under an active CBA. Specialized protective equipment that fails the "clothes" test remains compensable under IBP.

Integrity Staffing Solutions v. Busk, 574 U.S. 27 (2014). Amazon warehouse workers waited up to 25 minutes per day for mandatory exit security screenings to prevent merchandise theft. The Court unanimously held the screenings were NOT integral and indispensable: "An activity is integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities." The warehouse work — picking, packing, shipping — could be performed without the screening; the screening was for the employer's benefit (loss prevention), not intrinsic to the work itself. The decision narrowed the integral-and-indispensable test substantially and remains the controlling federal standard.

The four cases together establish the federal test: an activity is integral and indispensable if (a) the employee cannot perform the principal activity without it, AND (b) it is performed for the benefit of the employer in a way intrinsic to the work, not merely incident to it.

29 CFR Part 785 — Hours Worked

Part 785 is the Wage and Hour Division's interpretive guidance on hours worked. The load-bearing sections for off-the-clock claims:

§785.6 — definition of "employ" tracks §203(g): suffer or permit to work.
§785.7 — "workweek" defined; the workday is the period between the commencement and completion of the principal activity (Portal-to-Portal Act).
§785.11 — work not requested but suffered or permitted is work time.
§785.12 — work performed away from the premises or job site (and at home) is compensable when the employer knows or has reason to know the work is being performed.
§785.13 — duty of management to exercise control; "the mere promulgation of a rule against such work is not enough."
§785.14–.17 — engaged-to-wait vs. waiting-to-be-engaged distinction; on-call time.
§785.18 — rest periods of 5 to 20 minutes are paid hours worked; the regulation describes such breaks as "common in industry" and not a matter of employer discretion to call them unpaid.
§785.19 — meal periods of 30 minutes or more are unpaid only when the employee is "completely relieved from duty." Eating at the desk or remaining responsible for phones, customers, or equipment defeats the exclusion.
§785.27–§785.32 — training time is compensable unless ALL four prongs are met: outside regular hours, voluntary, not job-related, no productive work performed.
§785.33–§785.41 — travel time; covered in the sibling travel-time-pay research.
§785.47 — "Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded." This is the regulatory anchor for the federal de minimis doctrine.

29 CFR §790.6 — the continuous workday rule

Section 790.6(a) of the Portal-to-Portal Act regulations codifies the continuous-workday principle: the "workday" begins with the first principal activity and ends with the last principal activity, and "all of the time within that period is compensable" except for bona fide meal periods and other off-duty time. Where IBP named the doctrine, §790.6 had already encoded it.

The de minimis doctrine — Lindow v. United States

The de minimis doctrine flows from 29 CFR §785.47 and the Ninth Circuit's three-factor test in Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984): (1) the practical administrative difficulty of recording the additional time, (2) the size of the claim in the aggregate, and (3) whether the work is performed on a regular basis. Lindow has been widely adopted across the circuits as the operative federal test. Courts have typically treated 10 minutes per day or less, if irregular and administratively burdensome to track, as de minimis. The doctrine is a federal-law affirmative defense; California has rejected it for state-law claims, as discussed below.

The "knew or had reason to know" / constructive-knowledge standard

The Wage and Hour Division operates under the constructive-knowledge standard articulated in 29 CFR §785.11–.13 and confirmed by the circuits. Three propositions follow:

Promulgating a rule against off-the-clock work is not a defense if the employer permits the work in practice (29 CFR §785.13).
Receiving emails, messages, or work product outside scheduled hours is constructive knowledge of the work that produced them.
Punch records showing systematic clock-ins shortly after work began, or clock-outs shortly before work ended, are constructive knowledge of the off-the-clock minutes between.

Allen v. City of Chicago, 865 F.3d 936 (7th Cir. 2017), applied the standard to Chicago police officers performing off-duty BlackBerry work. The Seventh Circuit affirmed summary judgment for the City because the officers did not establish that the City knew or should have known of the specific unreported work, but the framing of the rule is the citation: "An employer who is armed with this knowledge cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation." The decision identified the reasonable-diligence safe harbor that DOL later formalized in Field Assistance Bulletin 2020-5: a reasonable reporting process the employer publicizes and enforces.

The Mt. Clemens burden-shifting rule

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), established the rule that governs every off-the-clock case where recordkeeping is inadequate. The Court framed it: "Where the employer's records are inaccurate or inadequate ... an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence."

The practical consequence: missing or unreliable timekeeping is the employer's loss. The employee's good-faith estimate controls unless the employer rebuts it. Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016), extended the rule to class actions, holding that representative evidence — average donning-and-doffing time multiplied across the class — is permissible when individualized records do not exist. The verdict in Tyson approached $5.8 million for a class of approximately 3,344 pork-processing employees.

29 CFR §516.2 — recordkeeping

29 CFR §516.2(a) requires every employer of a non-exempt employee to keep records of, among other things: hours worked each workday and total hours each workweek; basis on which wages are paid; regular hourly pay rate for any workweek in which overtime is owed; total daily or weekly straight-time earnings; total overtime premium pay; additions and deductions; total wages paid; date of payment and pay period covered.

The recordkeeping rule is what activates Mt. Clemens when the employer fails to comply — the regulatory duty creates the proof framework that backfills the missing data with the employee's testimony.

California — the strictest state

California's wage-and-hour law diverges from the FLSA in three ways that compound off-the-clock exposure: the definition of "hours worked," the rejection of the federal de minimis doctrine, and the Labor Code §203 waiting-time-penalty add-on that doubles or quadruples the per-employee recovery on small claims discovered at termination.

The "subject to control" test

The Industrial Welfare Commission Wage Orders define "hours worked" as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so" (e.g., IWC Wage Order 4-2001 §2(K); identical or near-identical language across Wage Orders 1 through 17). The test is disjunctive: time is compensable if the employee is EITHER subject to the employer's control OR suffered or permitted to work. The first prong has no federal analogue — under California law, time can be compensable on control alone, even if no actual work is performed.

Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000). Agricultural workers were required to ride employer-provided buses from a designated pickup point to remote fields. They could not leave the bus once boarded, could not use the time for personal purposes, and could not decline the bus (the fields had no public access). The California Supreme Court held the bus travel time was compensable as "hours worked" under IWC Wage Order 14-80 because the workers were "subject to the control of an employer" during the ride. The Court explicitly rejected the federal Portal-to-Portal Act framing: the FLSA's commute exclusion does not control California state-law claims.

Frlekin v. Apple Inc., 8 Cal.5th 1038 (2020). Apple retail employees were required to undergo bag and personal-Apple-device checks before leaving the store. The Ninth Circuit certified the compensability question to the California Supreme Court (Frlekin v. Apple Inc., 870 F.3d 867 (9th Cir. 2017)). The California Supreme Court held the time compensable under IWC Wage Order 7-2001 because Apple "subjected" the employees to its control by requiring the search as a condition of leaving. The Court distinguished Integrity Staffing explicitly: "The federal standard is far narrower than California's." The class action that followed settled for approximately $30.5 million for a class of approximately 14,683 California retail employees (final approval Aug. 12, 2022, N.D. Cal. Case No. C 13-03451 WHA).

The two cases together establish that California's "subject to control" prong reaches activities the federal "integral and indispensable" test excludes — security screenings, mandatory transit, employer-imposed waiting time — and reaches them on shorter durations than the federal de minimis threshold tolerates.

Troester and the rejection of de minimis

Troester v. Starbucks Corp., 5 Cal.5th 829 (2018). Starbucks shift supervisors performed closing tasks for 4 to 10 minutes after clocking out — transmitting daily sales data to corporate, activating the alarm, locking the store, and sometimes walking coworkers to their cars in the parking lot. Over 17 months, the lead plaintiff accumulated approximately $102.67 in unpaid wages. The Ninth Circuit certified the de minimis question to the California Supreme Court (Troester v. Starbucks, 738 F.3d 1108 (9th Cir. 2013, on remand)).

The California Supreme Court held that California has not adopted the federal de minimis doctrine codified at 29 CFR §785.47. Justice Liu wrote: "An employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine." The Court emphasized California Labor Code §510, §1194, and the Wage Order definitions of hours worked, none of which incorporate the federal de minimis threshold.

Troester left a narrow door for "irregular" or "infrequent" small amounts — the Court "[did] not decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded" — but regularity defeats the defense. Daily off-the-clock minutes are not de minimis in California.

The §203 waiting-time penalty multiplier

California Labor Code §203 imposes a "waiting time penalty" of up to 30 days of the employee's daily wages when wages are not paid timely at separation. Off-the-clock wages discovered at termination — even small amounts — trigger §203 on top of the unpaid wage itself. For a $20/hr employee, 30 days at 8 hours per day equals 240 hours × $20 = $4,800 in waiting-time penalties on a $50 off-the-clock claim. The §203 penalty is uncapped per employee but capped at 30 days; for a class, the multiplier across the workforce can dwarf the underlying wages.

Things employers consistently miss

Pre-shift system logins start the workday under the continuous-workday rule. An employee who logs into the timekeeping or POS system at 8:55 a.m., is clocked in for the shift at 9:00 a.m., and continues working until 5:30 p.m. has a workday from 8:55 a.m. The 5-minute gap is compensable under federal law (IBP-continuous-workday) and under California law (control + suffer-or-permit). Most employers do not record system-login timestamps for hourly employees; the audit trail that would defend the claim does not exist.
Working through paid rest periods does not stop the workday. California Labor Code §226.7 + IWC Wage Order 4-2001 §12 require an additional hour of pay at the regular rate when a rest period is denied, but the time spent working through the break is itself compensable on top of the §226.7 premium. The premium is not the only remedy; it is the additional remedy beyond the unpaid wages.
The §3(o) clothes-changing carve-out applies only to ordinary clothes under a CBA. Sandifer v. United States Steel Corp., 571 U.S. 220 (2014), defined the safe harbor narrowly. Specialized PPE, surgical scrubs, lead-shielding garments, and food-safety gear that is not "commonly regarded as articles of dress" remains compensable under IBP. Non-union workplaces have no §3(o) safe harbor at all — the CBA is the prerequisite.
"Voluntary" early arrival is not voluntary when the supervisor expects it. Pre-shift huddles, line-ups, equipment checks, and shift-handover overlaps frequently take 5–15 minutes before the scheduled clock-in. If the employer expects attendance, the time is suffered or permitted; the "voluntary" framing does not survive constructive knowledge.
Pre-shift parking and shuttle time becomes compensable when mandatory in California. Overton v. Walt Disney Co., 136 Cal.App.4th 263 (2006), held that Disney's optional satellite-parking shuttle was non-compensable because employees could choose alternate transportation. But where the employer mandates the parking route (and discipline follows non-compliance), the route triggers Morillion rather than Overton and the shuttle time becomes compensable.

State-by-state table

A note on coverage: "Federal floor" indicates a state that has not adopted a broader hours-worked definition than the FLSA; in those states, the federal integral-and-indispensable test and federal de minimis doctrine control state-law claims. Coverage current as of May 2026.

State	Hours-worked test	De minimis	Notable	Citation
Alabama	Federal floor	Federal	No state wage statute reaching off-the-clock claims	—
Alaska	Federal floor + state DOL guidance	Federal	AS 23.10.060 incorporates FLSA framework	https://www.akleg.gov/basis/statutes.asp#23.10.060
Arizona	Federal floor	Federal	Arizona Wage Act (ARS §23-350 et seq.) tracks federal	https://www.azleg.gov/arsDetail/?title=23
Arkansas	Federal floor	Federal	AR Code §11-4-211 tracks federal	https://www.arklegcode.gov/
California	Broader: "subject to control" OR suffered/permitted	Rejected (Troester)	IWC Wage Orders 1-17 §2(K); §203 waiting-time multiplier	https://www.dir.ca.gov/iwc/wageorderindustries.htm
Colorado	Broader: COMPS Order 38 Rule 1.9 — "all time during which an employee is performing labor or services for the benefit of an employer"	Not adopted (no controlling decision)	7 CCR 1103-1, Rule 1.9; explicit pre/post-shift coverage in 2020 revision	https://cdle.colorado.gov/laws-regulations-guidance
Connecticut	Federal floor + Conn. Gen. Stat. §31-58	Federal	CT DOL guidance on de minimis tracks federal	https://www.cga.ct.gov/current/pub/chap_558.htm
Delaware	Federal floor	Federal	19 Del. C. §901 et seq.	https://delcode.delaware.gov/title19/c009/index.html
District of Columbia	Federal floor (DC Code §32-1003)	Federal	DC Min. Wage Act tracks FLSA	https://code.dccouncil.gov/us/dc/council/code/titles/32/chapters/10
Florida	Federal floor	Federal	No state hours-worked statute	—
Georgia	Federal floor	Federal	No state hours-worked statute	—
Hawaii	Federal floor + HRS §387	Federal	HRS §387-1 definition of hours worked tracks federal	https://www.capitol.hawaii.gov/hrscurrent/Vol07_Ch0346-0398/HRS0387/
Idaho	Federal floor	Federal	Idaho Code §44-1502	https://legislature.idaho.gov/statutesrules/idstat/title44/t44ch15/
Illinois	Federal floor + 820 ILCS 105/3	Federal	IL Min. Wage Law tracks federal	https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2400
Indiana	Federal floor	Federal	IC 22-2-2	https://iga.in.gov/laws/2024/ic/titles/22/articles/2/
Iowa	Federal floor	Federal	Iowa Code §91D	https://www.legis.iowa.gov/docs/code/91D.pdf
Kansas	Federal floor + KSA §44-1201	Federal	KS Min. Wage and Max. Hours Law	https://www.ksrevisor.org/statutes/chapters/ch44/044_012_0001.html
Kentucky	Federal floor + KRS §337	Federal	KRS §337.275 hours-worked definition	https://apps.legislature.ky.gov/law/statutes/chapter.aspx?id=39253
Louisiana	Federal floor	Federal	No state hours-worked statute	—
Maine	Federal floor + 26 MRSA §664	Federal	Maine DOL interpretive guidance tracks federal	https://legislature.maine.gov/statutes/26/title26ch7sec0.html
Maryland	Federal floor + Lab. & Empl. §3-401	Federal	MD Wage and Hour Law tracks federal	https://mgaleg.maryland.gov/mgawebsite/Laws/StatuteText?article=gle§ion=3-401
Massachusetts	Federal floor + MGL c.151 §1A; treble damages automatic under MGL c.149 §150	Federal	Mullally v. Waste Mgmt. of Mass., 452 Mass. 526 (2008)	https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter149/Section150
Michigan	Federal floor + MCL §408.411	Federal	Improved Workforce Opportunity Wage Act	http://www.legislature.mi.gov/(S(2lf04q45wgshj345xt55t1bs))/mileg.aspx?page=getobject&objectname=mcl-act-337-of-2018
Minnesota	Broader (limited): "all hours during which the employee is required to give the employee's time to the employer" — Minn. R. 5200.0120	Federal-aligned	MN DLI interpretive guidance broader than FLSA on pre/post-shift activities	https://www.revisor.mn.gov/rules/5200.0120/
Mississippi	Federal floor	Federal	No state hours-worked statute	—
Missouri	Federal floor + RSMo §290.500	Federal	MO Min. Wage Law tracks federal	https://revisor.mo.gov/main/OneSection.aspx?section=290.500
Montana	Federal floor + MCA §39-3-401	Federal	MT Wage and Hour Act	https://leg.mt.gov/bills/mca/title_0390/chapter_0030/parts_index.html
Nebraska	Federal floor + Neb. Rev. Stat. §48-1201	Federal	NE Wage and Hour Act tracks federal	https://nebraskalegislature.gov/laws/statutes.php?statute=48-1201
Nevada	Federal floor + NRS §608.018	Federal	NV daily/weekly OT rules layered on FLSA hours-worked floor	https://www.leg.state.nv.us/nrs/nrs-608.html
New Hampshire	Federal floor + RSA §279	Federal	NH DOL interpretive guidance tracks federal	https://www.gencourt.state.nh.us/rsa/html/NHTOC/NHTOC-XXIII-279.htm
New Jersey	Federal floor + NJSA §34:11-56a	Federal	NJ Wage and Hour Law tracks federal	https://www.njleg.state.nj.us/statutes/Statutes.aspx?Title=34
New Mexico	Federal floor + NMSA §50-4	Federal	NM Min. Wage Act	https://laws.nmonesource.com/w/nmos/Chapter-50-NMSA-1978
New York	Broader: 12 NYCRR §142-2.1 — "any time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer"	Federal-aligned (no controlling decision)	NYLL §663 enforcement; "required to be available" is the operative phrase	https://dol.ny.gov/minimum-wage-and-overtime
North Carolina	Federal floor + NCGS §95-25	Federal	NC Wage and Hour Act tracks federal	https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_95.html
North Dakota	Federal floor + NDCC §34-06	Federal	ND Wage and Hour rules track federal	https://www.ndlegis.gov/cencode/t34c06.pdf
Ohio	Federal floor + ORC §4111	Federal	OH Min. Fair Wage Standards Act tracks federal	https://codes.ohio.gov/ohio-revised-code/chapter-4111
Oklahoma	Federal floor + 40 Okl. Stat. §197	Federal	OK Min. Wage Act tracks federal	https://www.oklegislature.gov/osStatuesTitle.html
Oregon	Broader: ORS §653.010 — "required or permitted" to work AND required to be at a prescribed location	Federal-aligned	BOLI interpretive guidance broader on pre/post-shift mandatory activity	https://oregon.public.law/statutes/ors_653.010
Pennsylvania	Broader: 34 Pa. Code §231.1 — "Hours worked includes time during which an employee is required by the employer to be on the premises"	Federal-aligned	Heimbach v. Amazon.com, 255 A.3d 191 (Pa. 2021) — security screening time compensable under PMWA	https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/034/chapter231/s231.1.html
Rhode Island	Federal floor + RIGL §28-12	Federal	RI Min. Wage Act tracks federal	http://webserver.rilegislature.gov/Statutes/TITLE28/28-12/INDEX.htm
South Carolina	Federal floor	Federal	No state hours-worked statute	—
South Dakota	Federal floor + SDCL §60-11	Federal	SD Min. Wage rules track federal	https://sdlegislature.gov/Statutes/Codified_Laws/2052569
Tennessee	Federal floor	Federal	No state hours-worked statute	—
Texas	Federal floor + Tex. Lab. Code §62	Federal	TX Min. Wage Act tracks federal	https://statutes.capitol.texas.gov/Docs/LA/htm/LA.62.htm
Utah	Federal floor + UCA §34-40	Federal	UT Min. Wage Act tracks federal	https://le.utah.gov/xcode/Title34/Chapter40/34-40.html
Vermont	Federal floor + 21 VSA §384	Federal	VT Min. Wage rules track federal	https://legislature.vermont.gov/statutes/section/21/005/00384
Virginia	Federal floor + Va. Code §40.1-28.10	Federal	VA Min. Wage Act tracks federal	https://law.lis.virginia.gov/vacode/title40.1/chapter3/section40.1-28.10/
Washington	Broader: WAC §296-126-002(8) — "all hours during which an employee is authorized or required ... to be on duty on the employer's premises or at a prescribed workplace"	Federal-aligned (no controlling de minimis decision)	Anfinson v. FedEx Ground, 174 Wn.2d 851 (2012) on representative proof	https://app.leg.wa.gov/wac/default.aspx?cite=296-126-002
West Virginia	Federal floor + WV Code §21-5C	Federal	WV Min. Wage Act tracks federal	https://code.wvlegislature.gov/21-5C/
Wisconsin	Federal floor + Wis. Stat. §104	Federal	WI Min. Wage rules track federal	https://docs.legis.wisconsin.gov/statutes/statutes/104
Wyoming	Federal floor + WS §27-4	Federal	WY Min. Wage Act tracks federal	https://wyoleg.gov/statutes/compress/title27.pdf

Six states have hours-worked tests broader than the FLSA in ways that change off-the-clock outcomes: California, Colorado, Minnesota, New York, Oregon, Pennsylvania, and Washington. (Massachusetts adds the automatic-treble-damages multiplier without changing the underlying test.) Pennsylvania is the most recent addition — Heimbach v. Amazon.com, Inc., 255 A.3d 191 (Pa. 2021), held that mandatory post-shift security screenings are compensable under the Pennsylvania Minimum Wage Act's broader hours-worked definition (34 Pa. Code §231.1), expressly rejecting the federal Integrity Staffing analysis for state-law claims.

Industry-specific rules

Manufacturing, food processing, and meat packing

Donning-and-doffing exposure is the dominant off-the-clock pattern. IBP v. Alvarez, 546 U.S. 21 (2005), and Tyson Foods v. Bouaphakeo, 577 U.S. 442 (2016), framed the doctrine. The §3(o) clothes-changing carve-out at 29 USC §203(o) permits a CBA to render the time non-compensable, but only for ordinary clothes under Sandifer v. United States Steel Corp., 571 U.S. 220 (2014), not for specialized protective equipment. Non-union processors have no §3(o) safe harbor. The continuous-workday rule from IBP also pulls the walk between the changing area and the production floor into compensable time.

Healthcare

29 USC §207(j) permits hospitals and residential care establishments to use a 14-day work period (the "8-and-80" rule) by prior agreement. The election does not change the hours-worked definition — every minute the employee is suffered or permitted to work, or is subject to control under state law, remains compensable. Pre-shift change-of-shift handoff time, pre-shift PPE donning, post-shift charting, and EHR access outside scheduled hours produce the dominant healthcare off-the-clock exposure. Surgical scrubs in unionized facilities can fall under §3(o); in non-union facilities or for specialized garments, IBP controls.

Retail and warehousing

Security screenings are the dominant retail/warehouse off-the-clock pattern. Integrity Staffing Solutions v. Busk, 574 U.S. 27 (2014), said federal law does not require compensation for the screenings; Frlekin v. Apple Inc., 8 Cal.5th 1038 (2020), and Heimbach v. Amazon.com, 255 A.3d 191 (Pa. 2021), said California and Pennsylvania state law does. A multistate retailer needs either (a) state-by-state policies acknowledging the divergence or (b) a strict-everywhere policy that pays screening time across the workforce.

Healthcare and home care

The federal Domestic Service rules at 29 CFR §552 historically exempted some home-care workers from FLSA overtime, but the 2013 rule revisions (effective Jan. 1, 2015 after a court delay; Home Care Ass'n of America v. Weil, 799 F.3d 1084 (D.C. Cir. 2015), upheld the rule) narrowed the exemption. Drive time between patient locations is now generally covered for home-care workers employed by third-party agencies. Pre-shift system logins to the EHR or scheduling app begin the workday under the continuous-workday rule.

Trucking

CMV (Commercial Motor Vehicle) drivers are exempt from FLSA overtime under the motor carrier exemption at 29 USC §213(b)(1), but they remain subject to minimum-wage and recordkeeping requirements. State law (CA, OR, WA) sometimes restores the overtime entitlement; the off-the-clock pre-trip/post-trip exposure runs the same direction. Detention time, pre-trip inspection time, and post-trip paperwork are all hours worked under both federal minimum-wage rules and state overtime rules where applicable.

Public-safety (fire and police)

29 USC §207(k) work periods (7 to 28 consecutive days) change the overtime threshold (53h/7 days for fire, 43h/7 days for police; 29 CFR §553.230) but not the hours-worked definition. Pre-shift line-ups, briefings, equipment checks, and post-shift report writing are all compensable under §785.11 and §203(g). Allen v. City of Chicago, 865 F.3d 936 (7th Cir. 2017), addressed off-duty BlackBerry work and established the constructive-knowledge / reasonable-diligence framing.

Multi-state and remote workers

Off-the-clock liability follows the employee's work location, not the employer's headquarters. Three operational implications:

Scenario 1: A Texas-headquartered retailer with stores in California. Federal screening rule per Integrity Staffing governs the Texas stores; the Frlekin rule governs the California stores. A uniform "screenings off the clock" policy creates California-only class exposure. The strict-everywhere policy that pays screening time across the workforce is the conservative response; the per-state policy is operationally harder to maintain. The class plaintiff lawyer reads the same employee handbook the corporate compliance officer wrote.

Scenario 2: A California-domiciled remote employee of a Boston-headquartered company. California law governs the employee. The continuous-workday rule under IBP (federal) and the "subject to control" prong under the IWC Wage Orders both apply. Pre-shift VPN login, after-hours email reads, and weekend Slack triage all count. Troester's rejection of the de minimis doctrine means 2 minutes per day of regular system-check time across 250 workdays is 8.3 hours of unpaid work per year — small per employee, dispositive of a state-wide class for a workforce of 100.

Scenario 3: A multistate hospital system with a unified PPE-changing policy. California, Oregon, and Washington apply broader hours-worked tests; New York and Pennsylvania apply broader hours-worked tests; the remaining states apply the federal floor. Donning surgical scrubs is compensable under federal IBP in non-union facilities regardless of state; under union CBAs the §3(o) carve-out applies federally but state law overlays may still require compensation (the Wage Order "subject to control" test in California pre-empts §3(o) in scope). A "scrubs off the clock" policy is exposed in any non-CBA facility and in California regardless.

Recent changes (last 18 months)

Villarino v. Pacesetter Personnel Service, Inc., No. 23-10645 (11th Cir. Dec. 5, 2025). The Eleventh Circuit affirmed dismissal of FLSA travel-time and tool-pickup claims, applying Integrity Staffing's "indispensable" test strictly: optional employer-provided transit and optional tool pickup are not integral and indispensable. Villarino is the most recent appellate application of Integrity Staffing to a non-screening travel-time pattern and reinforces the federal-floor / California-ceiling divergence.
DOL Field Assistance Bulletin No. 2025-2 (Mar. 14, 2025). WHD issued updated guidance on tracking remote-work hours, reaffirming the constructive-knowledge / reasonable-diligence framework from FAB 2020-5 and addressing time-tracking obligations when an employee uses a personal device for work communication. The reasonable-diligence defense requires a "reasonable process" the employer publicizes; receiving the employee's after-hours communication outside the reporting process can still produce constructive knowledge.
California Labor Commissioner DLSE Opinion Letters 2024–2025. Multiple opinion letters since 2024 have applied Troester to remote-work scenarios — pre-shift system logins, weekend Slack triage, after-hours email reads — confirming that regular small-quantum off-the-clock work in California is compensable regardless of duration. The DLSE opinion-letter archive is the primary source for the post-Troester extension into remote-work patterns.
Pennsylvania post-Heimbach enforcement. The 2021 Pennsylvania Supreme Court decision in Heimbach v. Amazon.com, 255 A.3d 191, has driven a wave of post-shift screening claims in Pennsylvania. Multiple class settlements in the $5M–$25M range have followed in 2024–2025; the pattern parallels the post-Frlekin California settlement landscape.
2024 DOL salary-threshold rule and its November 15, 2024 vacatur in State of Texas v. United States Department of Labor, No. 4:24-cv-499 (E.D. Tex.). The vacatur preserved the $684/week ($35,568/yr) federal salary basis. The relevance to off-the-clock work: misclassified salaried-non-exempt employees who do not meet the $684/week floor are the highest-volume off-the-clock plaintiff class. The Fifth Circuit dismissed the appeal on May 5, 2026; the DOL formally rescinded the rule on May 14, 2026.

FAQ

Does a "no off-the-clock work" policy protect the employer?

Not by itself. 29 CFR §785.13 says "the mere promulgation of a rule against such work is not enough." The employer must actually enforce the rule. Permitting the work in practice — accepting emails sent at 9 p.m., reviewing reports the employee completed at home, allowing the employee to remain after clock-out to finish a customer interaction — is constructive knowledge under the "knew or had reason to know" standard. The handbook clause is necessary but not sufficient.

What counts as "integral and indispensable" under the federal test?

Integrity Staffing Solutions v. Busk, 574 U.S. 27 (2014), articulated the test: an activity is integral and indispensable if it is "an intrinsic element of the principal activities the employee is employed to perform and one with which the employee cannot dispense if he is to perform his principal activities." The Court applied it narrowly — security screenings are not integral, donning safety gear is (per IBP v. Alvarez, 546 U.S. 21 (2005)), changing into specialized PPE is, walking from the changing area to the production floor is (continuous-workday rule). The dispositive question is whether the principal activity can be performed without the disputed activity, not whether the employer required the disputed activity.

Is California really different from federal law on bag checks?

Yes. Frlekin v. Apple Inc., 8 Cal.5th 1038 (2020), explicitly rejected Integrity Staffing for California state-law claims. The IWC Wage Orders' "subject to control" prong reaches activities the federal "integral and indispensable" test excludes. Apple's mandatory exit bag check was compensable in California for that reason — the employee was under Apple's control during the check, regardless of whether the check was indispensable to the retail work itself. The class action settled for approximately $30.5 million.

What's the de minimis threshold under federal law?

29 CFR §785.47 and the Ninth Circuit's three-factor test in Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984), control the federal de minimis defense. Courts have typically applied a ~10-minute-per-day threshold when the time is administratively burdensome to record AND irregular. Regular daily small-quantum work fails the test even at the federal level — Lindow's third factor explicitly asks "whether the work is performed on a regular basis." California has rejected the doctrine entirely for state-law claims (Troester v. Starbucks, 5 Cal.5th 829 (2018)).

What's the difference between "engaged to wait" and "waiting to be engaged"?

29 CFR §785.14–.17 distinguish the two. "Engaged to wait" — the employer requires the employee to remain available, on premises, or in a restricted location — is compensable. "Waiting to be engaged" — the employee is genuinely free to use the time for personal purposes — is not compensable. The dispositive facts are whether the employee can use the time effectively for personal pursuits, the geographic restriction, and the frequency of interruption. Skidmore v. Swift & Co., 323 U.S. 134 (1944), framed the test that the regulation codifies.

Are donning and doffing always compensable?

No. IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), held that donning and doffing specialized protective gear that the work requires is integral and indispensable and therefore compensable. Sandifer v. United States Steel Corp., 571 U.S. 220 (2014), held that ordinary work clothes under a collective bargaining agreement can be excluded under 29 USC §203(o). The test is two-part: is it specialized PPE or ordinary clothes (the Sandifer "commonly regarded as articles of dress" test), and is there an active CBA that excludes the time. Non-union workplaces have no §3(o) safe harbor; specialized PPE always counts.

How does the "knew or had reason to know" standard apply to remote work?

The standard is the same — constructive knowledge of the work. The 2020 DOL Field Assistance Bulletin No. 2020-5 confirmed that an employer's reasonable diligence in maintaining a reporting process can satisfy the standard, but receiving the employee's work product outside the reporting process can still produce constructive knowledge. Allen v. City of Chicago, 865 F.3d 936 (7th Cir. 2017), articulated the framing: an employer cannot "stand idly by" with knowledge of unreported work. Patterns the employer should reasonably notice — emails systematically before clock-in or after clock-out, Slack messages at 11 p.m. on a weeknight, status updates from the field at 6 a.m. — become constructive knowledge.

What's the statute of limitations on off-the-clock claims?

29 USC §255(a) sets 2 years for non-willful violations, 3 years for willful violations. Liquidated damages double the recovery under 29 USC §216(b) unless the employer establishes good-faith reasonable belief under 29 USC §260. California's UCL window under Cal. Bus. & Prof. Code §17200 extends recovery to 4 years for restitution; PAGA claims under Cal. Lab. Code §2698 et seq. carry their own framework. Massachusetts imposes treble damages automatically under MGL c.149 §150.

If You Discover You've Been Doing This Wrong

Stop the off-the-clock pattern immediately. The first remedial step is to halt the conduct prospectively. Issue clear guidance to managers; pay the time on a going-forward basis. Continuing the pattern after discovery converts the violation from negligent to willful and extends the statute of limitations from 2 years to 3 years under 29 USC §255(a).
Audit timekeeping records against system logs. VPN login timestamps, email send timestamps, POS / EMR / CRM access logs, badge swipes, and security-camera footage all create the parallel record that proves or disproves the duration of off-the-clock work. The audit identifies the exposure window and the per-employee scope; the audit also produces the evidence the employer needs under Mt. Clemens to rebut "just and reasonable inference" claims.
Calculate the back-wage exposure conservatively. The calculation is (per-day unpaid minutes × regular rate × 1.5 if hours-over-40 are implicated × number of days × number of employees), doubled by liquidated damages, with state-law multipliers layered. Conservative calculation supports a credible self-correction; aggressive minimization invites the class plaintiff's lawyer to reconstruct it from scratch with their own methodology.
Make employees whole through payroll. Pay the back wages with the next regular payroll cycle. In California, Labor Code §203 waiting-time penalties run on unpaid wages discovered at separation; paying timely now extinguishes §203 exposure for current employees. Document the payment with a written acknowledgment of the underlying hours covered, the rate applied, and the period — the documentation is the defense against future re-litigation of the same period.
Document the remediation under 29 USC §260's good-faith defense. Section 260 permits the court to reduce or eliminate liquidated damages where the employer shows good-faith reasonable belief that the conduct complied with the FLSA. The remediation file — internal audit memo, training records, payroll correction records, updated policy — is the evidence the §260 defense rests on. The defense is unavailable when the violation is found to be willful; the willful determination turns on whether the employer "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute" (McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988)).

The bottom line

Off-the-clock work is the wage-and-hour topic where the gap between policy and practice is most expensive. The federal "suffer or permit" definition and the "knew or had reason to know" constructive-knowledge standard mean that handbook policies do not, by themselves, defeat liability — only consistent enforcement does. California's "subject to control" test and rejection of the federal de minimis doctrine compound the exposure on every minute the employer permits work outside scheduled hours. The highest-leverage recommendation, and the only one that survives both the federal and California frameworks intact: capture every minute through the timekeeping system, treat off-the-clock work as a payroll error to be corrected rather than a policy violation to be ignored, and keep the 29 CFR §516.2 records that make Mt. Clemens a defense rather than a vulnerability.

Sources