💰 Is Off-the-Clock Walking Work?

Can off-the-clock walking be off-the-clock working? Sometimes, the answer is a resounding yes. This distinction is not just a matter of semantics; it’s a six-figure risk, and a recent settlement shines a harsh spotlight on the problem for business owners, brokers, and HR professionals alike.

Just last week, a class of Target workers in New Jersey warehouse distribution centers accepted a substantial $4.6 million settlement. The settlement addresses claims for payment for time spent walking to and from their stations for mandatory pre- and post-shift security checks. This is a critical lesson: understanding what constitutes off-the-clock working is paramount to mitigating legal exposure.

Most employers know that under the Fair Labor Standards Act (FLSA) [Outbound Link: U.S. DOL FLSA Page] and state wage and hour laws, you must pay employees for all time worked. You simply cannot require or allow employees to perform work “off-the-clock” and not compensate them. The challenge, however, lies in defining exactly what “off-the-clock working” truly means.

Defining “Time Worked”: Beyond the Job Description

“Time worked” is not limited to the tasks explicitly listed in a job description. It often includes necessary preliminary and postliminary activities—the things an employee must do to start or end their shift.

The New Jersey case, Sadler for Target Corp., highlights this point perfectly. The complaint centered on nonexempt, hourly warehouse workers at three distribution centers. These employees alleged they were required to:

• Show ID at the facility entrance.

• Undergo mandatory pre-shift screenings.

• Walk long distances to their work location before clocking in.

• Clock out, and then take a long walk back to be screened again before they could leave.

The plaintiffs asserted that failing to count this time as “hours worked” violates the New Jersey Wage and Hour Law , depriving them of minimum wage or, where applicable, overtime pay for that time.

💡 For Example: Target is facing a similar class-action lawsuit in New York, where plaintiffs allege the required pre-shift and post-shift walk can be as much as half a mile. One plaintiff claimed the walk alone took 8 to 10 minutes.

The Critical Role of State Law in Off-the-Clock Working Claims

While the U.S. Supreme Court’s 2014 ruling in Integrity Staffing Solutions v. Busk  stated that time spent waiting for security checks was not compensable under the FLSA (as it wasn’t “integral” or “indispensable” to the job), many states provide significantly greater wage and hour protections.

Therefore, business valuation and turnaround experts need to be aware: Relying solely on federal precedent is a major oversight when assessing risk.

The Sadler plaintiffs argued that New Jersey’s Wage and Hour Law defines “hours worked” to include “all time that employers require their employees to ‘be at his or her place of work.’” This broader definition significantly shifts the risk landscape for business owners operating in states like NJ, NY, and CA.

The High Stakes: Liquidated and Treble Damages

Employers who withhold pay due to employees—even if unintentionally—don’t just risk paying the minimum wage and overtime. That alone can be a hefty sum in a large class action. But the real danger lies in the additional penalties:

Yes, many employers would prefer not to pay overtime for activities they don’t see as work. The problem is that the law may define it differently. By not paying for that time when it’s actually worked, you exponentially increase your risk to cover the unpaid time, liquidated or treble damages, and all of the plaintiffs’ attorney fees. This is why you must know how to properly calculate non-exempt overtime, and understanding that “time worked” may include more than you thought.

Is Rolling the Dice Worth the Risk for Your Business?

HR professionals and executives must recognize the employee retention issue . Employees may stay and tolerate these practices only until they find a new job. Crucially, they have years after leaving to file claims for unpaid wages.

• In New Jersey and New York, the statute of limitations is 6 years.

• In California, it’s 3 years.

Is a few minutes of walking time truly worth a multi-million dollar class-action lawsuit years down the road?

For business owners and business brokers involved in M&A, this is a non-negotiable due diligence point [Internal Link: M&A Risk Assessment]. Undisclosed wage and hour liability can tank a deal or lead to significant post-acquisition litigation.

Some employers are willing to roll the dice on compliance. If that’s your company’s choice, that’s a calculated decision. But then, don’t complain when that gamble doesn’t go in your favor…

🚀 Take the Next Step: Quantify Your Wage Risk

Don’t let off-the-clock working liability turn into a multi-million dollar disaster. The risk is high, the statutes of limitation are long, and state penalties are severe. Take action today based on your role:

Ready to act? Call 732-902-0728 or fill out our contact form.

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Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ