By Ryan Danz, Founding Attorney, Employer Guidance Group PC
Disclaimer: This article is general information about California law — not legal advice, and not a substitute for having counsel review your specific policies. Reading it does not create an attorney-client relationship. Employment law changes frequently; consult a licensed California employment attorney about your situation before acting.
It is 9:40 on a Tuesday night. Your office coordinator, an hourly employee who works from home two days a week, sees a client text on her phone, answers it, forwards a document, and confirms tomorrow's schedule. It takes eleven minutes, and none of it shows up on her timecard.
Three nights a week for a year is an unpaid-wage claim, and an overtime claim on any day she passed eight hours. Spread it across a staff and it is a class or PAGA claim. Off-the-clock work by remote and mobile employees is one of the easiest wage claims for an employee to bring and one of the hardest for an employer to defend. The reason: the employer's own records show nothing.
What counts as "hours worked" in California
The Industrial Welfare Commission wage orders define hours worked as time during which an employee is "subject to the control of an employer." That includes all time the employee is "suffered or permitted to work, whether or not required to do so." The California Supreme Court restated both parts of that test in Huerta v. CSI Electrical Contractors (Cal. Supreme Court, No. S275431, March 25, 2024). There, a required exit security check on the employer's premises was compensable.
The "whether or not required" language is the part that catches remote employers. You do not have to ask for the after-hours email. If the employee does the work and you knew or should have known about it, you owe for the time.
There is no "it was only a few minutes" defense
Under federal law, employers can sometimes disregard small, hard-to-record bits of time. California rejected that approach for regularly occurring work. In Troester v. Starbucks Corp. (Cal. Supreme Court, No. S234969, July 26, 2018), the closing tasks at issue took roughly four to ten minutes a shift. The court held that California's wage laws do not let an employer require employees to routinely work minutes off the clock without pay.
The court did leave one question open: whether some activities are so irregular or brief that requiring pay for them would be unreasonable. Justice Kruger, concurring, offered one possible example: the occasional off-hours email or text about a schedule change that an employee is expected to read and acknowledge. Do not build a policy on that opening. A message that comes every week is not irregular.
The knowledge question: "should have known"
Liability is not automatic. In Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, the Supreme Court said an off-the-clock claim depends on proof that the employer knew or should have known the work was happening. That standard cuts both ways:
| Fact pattern | Likely read on knowledge |
|---|---|
| Manager texts the employee after hours and gets a reply | Actual knowledge |
| Email server shows routine 10 p.m. replies from an hourly employee | Strong evidence you should have known |
| Employee secretly works, never reports it, and a clear reporting channel exists | Better defense, but not a guaranteed one |
| Policy says "no after-hours work" but managers reward fast replies | The policy will lose to the practice |
Those rows are patterns, not holdings. Knowledge is a fact-specific question in every case, and no single row decides one — a court weighs the whole picture.
Email timestamps, Slack activity, and VPN logs become the employee's timesheet in litigation.
Travel and on-call time for mobile employees
Field staff create a second category of risk. In Morillion v. Royal Packing Co. (Cal. Supreme Court, No. S073725, March 27, 2000), the court held that travel the employer requires, such as riding a company bus from a set meeting point, is hours worked because the employer controls the trip. An ordinary commute from home is not.
On-call time depends on how much you restrict the employee. The Labor Commissioner's guidance on call-back and standby time treats on-site standby as hours worked. For off-site on-call time, it weighs several factors: geographic limits, how quickly the employee must respond, how often calls come in, whether the employee can trade shifts, and how freely they can pursue personal activities. If a 15-minute response window keeps a technician tied to home, that time can become paid time.
Recordkeeping is the whole defense
Labor Code § 1174(d) requires employers to keep payroll records of the hours worked daily by each employee. The records must be kept for at least three years. The same subdivision bars you from stopping employees from keeping their own records of the hours they work. If your records are blank and the employee's personal log is detailed, the employee's log becomes the main evidence of what is owed.
Labor Code § 1194 lets an employee sue for unpaid minimum wage and overtime and recover attorney's fees. The Supreme Court described that fee provision as one-way in Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, meaning only employees can recover fees under it. In a small claim, fees can outgrow the wages. Missed time can also lead to wage statement claims and PAGA exposure. See our posts on meal and rest break premiums and avoiding PAGA penalties.
One note on scope: this post covers time. The separate duty to reimburse home internet, phones, and other remote-work costs is covered in our post on cell phone and remote work reimbursement.
The steps below are general information, not legal advice. Have counsel tailor them to your workforce and practices before you act.
Action checklist for remote and mobile non-exempt staff
- Write an after-hours rule and enforce it. Either ban after-hours work for non-exempt employees, or require them to record every minute of it. Either way, pay for any time actually worked.
- Give employees a way to record short tasks. A mobile clock-in, a timecard edit field, or a same-day "I worked X minutes" form. Troester specifically pointed to employers adapting their time-tracking tools.
- Train managers first. Most after-hours work starts with a manager's message; use scheduled-send, or route off-hours requests to exempt staff.
- Pay for reported time, then coach. Discipline for unauthorized work is allowed. Withholding pay for it is not.
- Run a quarterly audit of your system logs. Compare email, chat, and VPN timestamps against timecards for a sample of hourly staff. You want to find the gap before a plaintiff does.
- Map field employees' travel and on-call rules. Note every required meeting point and response window, and decide in writing whether that time is paid.
- Get a signed acknowledgment. Have employees confirm each pay period that their time records are complete, and give them a way to report anything missing.
Get ahead of it
If your hourly team works from phones, laptops, or trucks, the evidence is already on your servers. Employer Guidance Group helps California employers find and close these gaps through wage and hour counseling and confidential compliance audits. We also defend employers when a claim arrives, including PAGA notices. Contact us to talk through your setup.
Disclaimer
This article is general information about California law. It is not legal advice, and reading it does not create an attorney-client relationship. Employer Guidance Group PC is not your attorney unless and until you have signed a written engagement agreement with the firm.
California employment law changes constantly. The information here may be incomplete, out of date, unverified, or incorrect, and it does not account for your specific facts — and outcomes turn on facts. Do not act, or refrain from acting, on the basis of this article. Consult a licensed attorney about your own situation before making any employment decision.
This communication may constitute attorney advertising. Prior results do not guarantee a similar outcome.