Is it legal to make an employee stay at work without pay?

UPDATED: Oct 2, 2022

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Is it legal to make an employee stay at work without pay?

Our company does not have an HR department. Our CEO told employees we had to have our 40 hours in by Friday at noon. He then told employees he wants to have a gathering where he would supply food and games. He said we have to stay until 3 pm but we will not be paid from 12-3 and we cannot leave. Can be make us stay? Is this legal?

Asked on August 5, 2019 under Employment Labor Law, South Dakota


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

1) He can make you stay: employers, not employees, set and determine hours, schedules, work that must be done or events attended, etc.
2) Salaried employees do not get any pay for this: their weekly salary is their total pay for any/all work or hours during the week.
3) If it is mandatory, then even if it is "fun and games," it is considered work: anything the employer requires you to do, or anyplace it requires you to be, is work. So if it is mandatory, hourly employees, who must under the law (e.g. the Fair Labor Standards Act, or FLSA) must be paid for all hours worked, must be paid for the time.
4) If it's not mandatory--i.e. if could leave, even if doing so is a bad idea because it will disappoint your boss--then hourly employees would not be paid.

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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