By Dan Davis, August 19, 2026
Almost every Louisiana worker has done it. You clock out and then finish closing. You answer your supervisor’s texts from the couch. You stay late to wrap up a job because leaving it half-done makes tomorrow worse. Nobody told you to record that time.
The answer is yes — that time is generally supposed to be paid. And that rule does not depend on whether your employer told you to do the work.
The Fair Labor Standards Act defines “employ” as to suffer or permit to work. The Department of Labor’s regulation explains what that means: “Work not requested but suffered or permitted is work time.” It gives examples — an employee who keeps working after the shift, who wants to finish a task, correct errors, or prepare reports. And the DOL then adds the five words that decide most of these cases: “The reason is immaterial.” 29 C.F.R. § 785.11.
The test is not whether the work was authorized. It is whether your employer knew, or had reason to believe, the work was happening. If so, it is working time and it must be paid.
Having a rule is not the same as enforcing a rule. Under 29 C.F.R. § 785.13, which explains what the DOL calls “Duty of management,” it is the employer’s job to control the work if it doesn’t want it performed: “It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.”
So an employer can’t post a “no-overtime” policy, look the other way while the work gets done, and keep the benefit for free. If your supervisor sees you staying late or reads the emails you send at 9:00 p.m., the policy does not protect the employer.
Yes. 29 C.F.R. § 785.12 extends the same rule to work performed away from the premises “or even at home.” That is where much modern off-the-clock time happens — after-hours customer calls, group texts, logging jobs from the kitchen table, monitoring a phone for dispatch, reviewing and sending emails. The location doesn’t matter. Work is work.
This part matters, because Louisiana sits in the federal Fifth Circuit and its rule cuts both ways.
In Newton v. City of Henderson, 47 F.3d 746 (5th Cir. 1995), the court confirmed that an employer is liable when it has knowledge — actual or constructive — that an employee is working. Constructive knowledge means the employer should have known.
But the worker in that case lost. He had been officially told not to work extra overtime, he turned in time sheets that did not reflect the disputed hours, and he could not show the City was told otherwise. The court also held that an employer’s mere access to records revealing uncompensated overtime is not by itself constructive knowledge.
The lesson: report your hours. Put the time on your time sheet even if you expect it to be questioned, and tell a supervisor in writing. An employer who is told and does nothing stands in a very different position from one never told at all.
Employers — not employees — carry the legal duty to keep accurate records of hours worked. 29 U.S.C. § 211(c). When an employer fails at that duty, the law does not reward the employer. Under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), if the employer’s records are inadequate, a worker meets his burden by proving he performed work he wasn’t properly paid for and showing the amount as a matter of just and reasonable inference. The burden then shifts to the employer to produce precise evidence or rebut that inference — because a contrary rule, the Court said, “would place a premium on an employer’s failure to keep proper records.”
You don’t have to keep a perfect ledger to bring a claim. But your own notes — a calendar, a notebook, time-stamped texts — make that inference much easier to draw.
The FLSA’s limitations period is two years, extended to three for a willful violation. 29 U.S.C. § 255(a). Every week that passes, the oldest week of unpaid time drops off the back end.
Off-the-clock time matters most when it pushes you past 40 hours, since those hours should have been paid at time and a half. The FLSA also allows recovery of an additional equal amount as liquidated damages in many cases, and it is illegal for an employer to retaliate against you for raising a wage complaint.
Start a record today, kept somewhere your employer does not control: date, what you did, start and stop times. Save the texts and emails showing when you worked, and keep your pay stubs.
Louisiana has no state overtime statute of its own, so these federal rules are the protection Louisiana workers have. If your hours and your paychecks do not match, the attorneys at Estes Davis Law will review it with you at no cost. Call (225) 336-3394 for a free, confidential consultation. Se habla español.
This article is general information about Louisiana law and is not legal advice. Past results do not guarantee a similar outcome; every case depends on its own facts. For advice about your situation, please consult an attorney.
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